Meghan’s Privacy Case Victory – A Catalyst to Censorship?
In an astounding victory, in February 2021, Meghan, the Duchess of Sussex, won her case against Associated Newspapers Limited (ANL) over the publication of extracts from a letter addressed to her father. Though this case involves high-status figures, it is of significance to evaluate the extent to which the judgment will serve as precedent towards the law regarding privacy, and particularly whether the media will be barred from publishing leaked documents.
Case facts and judgment
The claim by Meghan was submitted on the basis that her privacy and copyright were breached by ANL, when they had published a handwritten letter sent to her father, Thomas Markle.
The essential components of the case are as follow:
The letter disclosed the intimate thoughts and feelings of the Duchess (on personal matters), and thereby they were not matters of public interest. Consequently, the Duchess had a reasonable expectation that the contents of the letter would remain private, and the publication of it by ANL is a misuse of her private information.
The letter constitutes an original literary work, thus Meghan was entitled to copyright protection, and ANL had infringed on her copyright, by reproducing and issuing to the public, substantial parts of the letter.
It is also worth noting that the letter contained input from the Kensington Palace communications team, which was criticised by ANL, as “[n]o truly private letter” would have needed such input. Furthermore, the newspaper group’s legal counsel, Mr Antony White, argued that Meghan’s position as a Royal Family member meant that she “did not have a reasonable expectation of privacy”, but this point was rebutted by Mr Justin Rushbrooke (representing the Duchess), asserting that her being “in some senses a public figure [...] does not reduce her expectation of privacy.”
Conclusively, the trial judge, Mr Justice Warby (through a summary judgment) allowed the claim, holding that the publication of the letter was “manifestly excessive and hence unlawful” and that the Duchess had a “reasonable expectation that the contents of the letter would remain private”.
Case analysis
The law on privacy is not regulated by statute, and is instead governed by case law. The landmark decision of Campbell v Mirror Group Newspapers Ltd [2004] established that claims under Article 8 of the European Convention of Human Rights (relating to the right of privacy) can be successfully brought, and the case recognised the new tort of ‘misuse of private information’. By virtue of Meghan’s victory in the court proceedings, she was able to demonstrate how ANL had interfered with her “human autonomy and dignity”, thereby demonstrating the gross interference that ANL has committed in the invasion of Meghan’s privacy.
As Mr Justice Eady stated in CTB v News Group Newspaper [2011], “the modern law of privacy is not concerned solely with information or 'secrets': it is also concerned importantly with intrusion". Thereby, Meghan’s victory is truly a “comprehensive win” (as she describes in a statement published in February), in that media outlets will (hopefully) not be able to “take someone’s privacy and exploit it in a privacy case, as the defendant [ANL] has blatantly done over the past two years.”
The ruling by Mr Justice Warby in Meghan’s privacy case has been depicted as “a good day for PR men” by legal experts, such as Mark Stephens (partner at Howard Kennedy and media lawyer). This is because those who can afford high-tier PR companies and legal counsel will be able to fabricate a flattering image of themselves in the media. Stephens further continues, stating that the decision is “putting manacles on the media”, and this will have significant implications, in that the terms of the judgment prohibit documents leaked to journalists and media outlets to be published, and “it is unclear when public interest comes in to allow you to publish”. As such, some have characterised this judgment as a gateway towards censorship in the media.
However, these broad arguments are wilfully blind towards the limited scope of the judgment. In the immediate privacy case, the leak by ANL contained substantial extracts of an intimate and private document (which details the intimate feelings of the claimant and claimant’s family life). Thereby, to state that this judgment establishes precedent akin to opening the floodgates towards censorship in the press is a gross exaggeration. The British press continues to target Meghan and her relationship to Prince Harry, and this judgment (rather than a catalyst for censorship) should be realistically identified as what it actually is – an urgent strengthening of the Article 8 right to a private life. Meghan is a celebrity and public figure, but this does not disfigure her right to privacy, nor anyone else in a similar (or completely different) situation. Hopefully, this high-profile case will become strong reinforcement which will tip the balance of power away from the press that takes delight in the demolition of public figures, like Meghan.
It is also worth noting that Mr Justice Warby also ruled that ANL must publish a front-page statement, depicting the Duchess’s legal triumph, which additionally should be published on MailOnline for one week. Doing so would have significant social implications, especially given the Oprah interview broadcasted in early March, whereby the Duchess highlighted the violations of privacy (among other things) that she has endured. However, the remedy ordered has yet to be followed, as ANL is in the process of applying for permission to challenge the February ruling, and it will be interesting to see the effect that the Oprah interview will have on the success of the appeal. Conclusively, the longevity of the judgment in HRH The Duchess of Sussex v ANL [2021], as precedent, remains to be seen.