In another reminder that being a princess isn’t all it’s cracked up be (after binge-watching the latest season of The Crown), Meghan Markle (a.k.a. The Duchess of Sussex) was recently granted summary judgment in a privacy claim against Associated Newspapers Limited, over the publication of extracts from a hand-written letter to her father (see HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch)).

The case raises some interesting questions about the boundaries for media and tabloid outlets reporting on the most private aspects of royal life, as well as the monetary and emotional costs of bringing such a claim for those who have had their privacy violated.

Background

Meghan Markle has been the subject of negative tabloid coverage since news first broke of her relationship with HRH Prince Henry of Wales (a.k.a. The Duke of Sussex, a.k.a. Prince Harry) in 2016. Loyal monarchists will recall the statement Prince Harry released as the romance was first blossoming, in which he characterised the media’s treatment of Meghan as a “wave of abuse and harassment”.[1]

Since that time, Meghan and Harry have been very open about their frustration with the British media’s negative coverage of Meghan, which The Duke and Duchess of Sussex consider to be laced with racially-charged undertones (while we’re on the topic, some unsolicited advice for readers: the Oprah interview is must-see viewing).

In a statement released regarding the case, Prince Harry compared the press’ treatment of Meghan to that of his mother, the late Princess Diana, writing:

“I’ve seen what happens when someone I love is commoditised to the point that they are no longer treated or seen as a real person. I lost my mother and now I watch my wife falling victim to the same powerful forces.”

The facts

The case arose in relation to articles which were published about Meghan in the Mail on Sunday and the MailOnline (the Mail Articles). Both articles reproduced large parts of a hand-written and personal letter that Meghan wrote to her father in the months following her wedding to Prince Harry (the Letter). Meghan brought the action against parent company Associated Newspapers, asserting, amongst other things, that the publication of the Letter involved:[2]

an infringement of her copyright in the Letter; and
a misuse of her private information (on the basis that the contents of the Letter were private and engaged Meghan’s rights under Article 8 of the European Convention on Human Rights to respect for her “private and family life… and [her] correspondence” – more on this below).[3]

The decision discussed in this post was the result of an application made by Meghan to strike out the defences to the claim of misuse of private information and to seek summary judgement on both claims. Ultimately, the Court granted summary judgment on the misuse of private information claim.[4] The Court also granted partial summary judgment in respect of the copyright claim,[5] determining that the Mail Articles had indeed infringed upon the Duchess’ copyright.[6] Despite this overall decision in respect of copyright infringement, the Court left one copyright issue to be fixed for determination at trial. The remaining issue, which is yet to be determined at the time of writing, relates to ownership in the Letter (an issue which the Court considered to be of minor significance to the wider copyright claim).[7] We have set out the reasoning behind this decision in further detail below.

Infringement of copyright claim

With respect to the infringement of copyright claim, the Court found that the publication of the Letter did infringe on Meghan’s copyright in an electronic version of the Letter (which the Duchess had produced while drafting the Letter).[8]

In relation to this copyright claim, the defendant made a number of novel arguments, particularly regarding the concept of originality.[9] These arguments included that the Letter could not enjoy copyright protection to the extent that it was: (a) an “admonishment” of Meghan’s father, or (b) a statement of undisputed historical facts. The Court found no basis in law or fact for either of these arguments, finding instead that the electronic draft of the Letter “…would inevitably be held to be the product of intellectual creativity sufficient to render it original in the relevant sense and to confer copyright on its author or authors”.[10]

Likewise, there was no basis on which a court at trial could conclude that the publication of the Letter in the Mail Articles was fair dealing for the purposes of reporting current events,[11] or that public interest would require the copyright to be overridden.[12]

Despite the above findings, the defence case that the works in the electronic draft were of “joint authorship” between Meghan and her former communications secretary, will proceed to be determined at trial. This is despite the Court describing the defendant’s claim as occupying “the shadowland between improbability and unreality” and being “at the very outer margins of what is realistic”.[13] The Court noted that this matter will only go to remedies, and that “[t]here is no room for doubt that the defendant’s conduct involved an infringement of copyright”.[14]

Misuse of private information claim

As we have alluded to in earlier IP Whiteboard articles,[15] domestic privacy law in the United Kingdom is vastly different to that in Australia. Pursuant to the Human Rights Act 1998, courts in the UK are obliged to interpret, apply and develop English law in conformity with the European Convention on Human Rights (ECHR). Taking their cue from this obligation, English courts have developed privacy law judicially, by balancing the competing rights enshrined in ECHR Articles 8 (the right to privacy an family life) and 10 (the right to freedom of expression) into the English common law.[16] Essentially, what began as an extension of the equitable cause of action for breach of confidence has now been judicially developed to such an extent that “misuse of private information” is in effect a distinct tort in its own right in the United Kingdom.”[17]

In relation to Meghan’s misuse of private information claim, the Court focused on two main questions, both of which were decided in favour of the Duchess:[18]

did the defendant set out any case which could provide a reasonable basis for finding that Meghan had no reasonable expectation of privacy in relation to the Letter; and
did the defendant have any realistic prospect of defending a claim that Meghan had a reasonable expectation of privacy in relation to the Letter?

The defendant raised a number of arguments, including that:[19]

The contents of the Letter were not private or confidential, and there was no reasonable expectation of privacy.
Any privacy interest that did exist was slight, and was outweighed by the need to protect the rights of Meghan’s father and the public at large.
Any privacy rights that did exist were limited given the legitimate public interest in the activities of the Royal Family.
Any privacy rights that did exist were destroyed, weakened or compromised by:
- Meghan’s knowledge of her father’s propensity to speak to the media;
- Meghan’s own conduct in authorising or intending publicity about the Letter and about her relationship with her father (including through the alleged assistance of biographers)[20];
- the earlier publication of information about the Letter and its existence (in a separate article in the United States, which alluded to the existence of the Letter but did not set out its contents)[21]; and
- the fact that publication of the Letter was lawful in the United States.

The Court described aspects of the defendant’s case as “legally untenable or flimsy at best”.[22] It was acknowledged that where a person actively seeks the limelight, they may have a reduced expectation of privacy, but that such reduction is “not broad–brush”.[23]

The Court found that the Letter regarded “inherently private and personal matters”[24] and that Meghan had a reasonable expectation that the contents of the Letter would remain private. This expectation was interfered with by the Mail Articles, which the Court considered to be “manifestly excessive and hence unlawful”.[25] The Court did not consider that there was any prospect of a different judgment being reached after trial.[26]

In coming to this decision, the Court considered a number of factors, including that:

None of the contents of the Letter had entered the public domain by the time of its publication in the Mail Articles.[27]
The activity of writing the Letter was not an aspect of Meghan’s public role or function as part of the Royal family.[28]
The Letter was sent privately to Meghan’s father, by courier (thereby constituting “correspondence” relating to “family life” under Article 8 of the ECHR).[29]
The defendant publisher should have known, or would have been able to infer, that it did not have Meghan’s consent to publish the Letter and that such publication would be likely to cause at least some distress.[30]
Meghan’s knowledge of her father’s propensity or likelihood to publish the Letter could not defeat her rights (although would be capable of affecting any damages).[31]
There was no authority to suggest that any intention by Meghan to publish the Letter herself, or to authorise its publication at some future date, would be fatal to a current claim (even if such intention could be proved by the defendant).[32]

The Court also considered whether the publication of the Letter was necessary and proportionate to protecting the rights of others or whether the interference with the freedom of expression was necessary and proportionate in pursuit of protecting Meghan’s rights.[33] In this respect, the Court found no foundation for a conclusion that the publication of the Letter served any purpose other than “satisfying public curiosity” about the Duchess.[34]

This finding is reminiscent of the landmark Harvard Law Review article, The Right to Privacy, which is widely regarded as formulating the legal concept of a right to privacy (articulated in the article as a “right to be let alone”). In the article, authors Warren and Brandeis advocate for a right to be let alone, in part, as a method of addressing unwanted newspaper publicity (ring any bells?). Although published in 1890, the article included such timeless wisdom as:

“Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery … Even gossip apparently harmless, when widely and persistently circulated, is potent for evil”.

The takeaways

While members of the Royal Family have sued the press before,[35] this decision will undoubtedly be one for the history books.

Interestingly, in bringing the application, it was necessary for additional parts of the Letter to be set out in the judgment – including parts of the Letter that had not yet been made public.[36] This raises the question of the personal costs of bringing such a claim, wherein a claimant may open themselves up to more public scrutiny in relation to their private information. The impact of having such information publicised was noted by Meghan herself, who stated:

“For these outlets, it’s a game. For me and so many others, it’s real life, real relationships, and very real sadness.”[37]

This decision also raises questions regarding the role and responsibility of media outlets in the modern age. Is there an onus on the media to ensure that articles are fair, sympathetic and sensitive (despite any impact this might have on profits), or should the onus be on subjects of articles to bring expensive and time-consuming claims against these outlets when they cross a line? In a similar vein, is there an expectation on readers and viewers to send a message to these outlets by boycotting articles that go against their own values and expectations? And will we start to see cases like this if Australia introduces a new statutory tort for serious invasions of privacy?[38]

If the reactions to Meghan and Harry’s recent Oprah interview are anything to go off,[39] it seems that the couple’s struggle with the British media is far from over, despite the decision in this case. At least one thing is certain… this saga will make for very juicy episode of The Crown.

[1] https://www.royal.uk/statement-communications-secretary-prince-harry

[2] See [3].

[3] Note that in Australia, there is no equivalent domestic law or tort of privacy – see our earlier IP Whiteboard articles referencing this topic here and here.

[4] See [170].

[5] See [170].

[6] See [168].

[7] See [167].

[8] See [168].

[9] See [139] to [149].

[10] See [149].

[11] See [156].

[12] See [158].

[13] See [166].

[14] See [168].

[15] For example, see this article on English privacy law, or this article on Prince Harry’s brother William’s own privacy vows in relation to his wife, Kate Middleton.

[16] For the case that started it all, see Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, involving supermodel Naomi Campbell.

[17] See Vidal-Hall v Google Inc [2014] EWHC 13 (QB) and Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311 (27 March 2015).

[18] See [66].

[19] See [6].

[20] See [7] and [83] – [84].

[21] See [47] to [51].

[22] See [98].

[23] See [101].

[24] See [76].

[25] See [128].

[26] See [128].

[27] See [68], [81] – [84] and [98]

[28] See [69] and [71] – [72].

[29] See [69] and [73].

[30] See [69].

[31] See [77] – [80] and [98].

[32] See [87] – [93]. Note that, in coming to this decision, the Court referred to another celebrity privacy case, being Douglas v Hello! Ltd (No 3) [2005] 4 All ER 128, which concerned unauthorised photographs which were taken of Michael Douglas’ wedding to Catherine Zeta-Jones.

[33] See [96].

[34] See [103].

[35] https://www.bustle.com/p/a-history-of-royals-suing-the-press-because-meghan-harry-arent-the-first-18841587

[36] See [44].

[37] https://www.bbc.com/news/uk-56028583

[38] See the Attorney-General’s Issues Paper for the Privacy Act review here: https://www.ag.gov.au/system/files/2020-10/privacy-act-review–issues-paper-october-2020.pdf

[39] See, for example, https://www.news.com.au/entertainment/celebrity-life/royals/piers-morgan-brands-meghan-markle-a-liar-again-as-feud-reignites/news-story/ea9db42db54874bc622be697c710faf6 and https://slate.com/human-interest/2021/03/meghan-harry-british-tabloid-oprah-interview-response.html