03 Dec NEWSPAPER’S APPEAL DISMISSED IN DUCHESS OF SUSSEX PRIVACY CLAIM

The appeal by the publisher of The Mail on Sunday against the decision to grant summary judgment in favour of the Duchess of Sussex in her claim for breach of privacy and breach of copyright was dismissed by the Court of Appeal on 2 December 2021.

The claims by the Duchess against Associated Newspapers Limited related to the publication in The Mail on Sunday and on Mailonline of about half of the contents of a 5-page handwritten letter which the Duchess had sent on 27 August 2018 to her father, Thomas Markle.

Mr Markle gave evidence that he decided to talk publicly about the letter to correct inaccuracies contained in an article published on 6 February 2019 in People magazine in the USA, which referred to the letter and the nature of his relationship with his daughter.

The Duchess obtained summary judgment in February 2021, succeeding in her claim without the need to give disclosure or evidence or to have to face a trial.

The newspaper appealed and, in a judgment handed down on 2 December 2021, the Court of Appeal upheld the judge’s decision that the Duchess had a reasonable expectation of privacy in the contents of the letter, and that this was not outweighed by any public interest in publication.

The Court of Appeal decided that the contents of the letter were personal, private and not matters of legitimate public interest, and that its publication was not a justified or proportionate means of correcting inaccuracies about the letter in People magazine.

Unusually for an appeal, both parties had relied on new evidence, which related to communications between the Duchess and Jason Knauf, who had been a member of the Kensington Palace Communications Team at the relevant time.

The Court of Appeal admitted this evidence, even though it was directed more to the drafting of the letter and to what the Duchess knew about the contact between the Kensington Palace Communications Team and the authors of the book, “Finding Freedom”, than to the issues in the appeal.

The Court decided that the judge, Warby J, had been in as good a position as any trial judge would be to look at the article in People magazine, the letter and the Mail articles to decide if publication of the contents of the letter was appropriate to rebut the allegations made against Mr Markle.

The judge had, the Court found, been correct to decide that, whilst it might have been proportionate to publish a very small part of the letter for that purpose, it was not necessary to publish half its contents, as the newspaper had done.

Both sides made forceful statements about the outcome.

The Duchess said: “This is a victory not just for me, but for anyone who has ever felt scared to stand up for what’s right. While this win is precedent-setting, what matters most is that we are now collectively brave enough to reshape a tabloid industry that conditions people to be cruel and profits from the lies and pain that they create.”

Associated Newspapers said in a statement of its own: “We are very disappointed by the decision of the Court of Appeal. It is our strong view that judgment should be given only on the basis of evidence tested at trial, and not on a summary basis in a heavily contested case, before even disclosure of documents. No evidence has been tested in cross-examination, as it should be, especially when Mr Knauf’s evidence raises issues as to the Duchess’s credibility.”

Associated Newspapers added that its original article had raised issues of public interest.

While the decision is on its face a conventional application of the established principles of privacy law, it has attracted adverse comment from the media.

The unusual facts of the case underline an increasing focus in the modern law on the principle that a person has a right to exercise control over the disclosure of information about themselves.

The clear recognition of this aspect of personal privacy by the Courts will have significant consequences for the media and those, including celebrities, who feature in it.

Is it all over? Perhaps not. Following the Court of Appeal’s judgment, a spokesperson for Associated said, “We are considering an appeal to the Supreme Court in the UK”.