Private letters and freedom of expression: HRH Duchess of Sussex v Associated Newspapers Ltd

The Duchess of Sussex’s claim against Associated Newspapers has come to an abrupt end following her application for summary judgment in what had been slated to be the most high-profile civil UK court case in quite some time.

By making an application for summary judgment, Meghan Markle had the burden of demonstrating that Associated Newspapers had no real prospect of success in defending the claim or that there was no other compelling reason for a trial to take place.

In granting Markle’s request to bring the case to an end without proceeding to trial, the High Court held that the tabloid publisher’s reproduction of parts of a letter written to her estranged father in the months following her marriage to Prince Harry constituted misuse of her private information and infringement of copyright.

The Letter
In August 2018, a few months after marrying into the Royal Family, the Duchess wrote and sent a letter to her father, Thomas Markle, concerning their strained relationship.

The fact of the letter’s existence was first made known by way of a reference in an article published by US magazine People in early February 2019. Thomas Markle felt the People article misrepresented the tone and content of the letter, so soon thereafter he reached out to the US editor of the Mail on Sunday, a publication that he said respected his wish to publish extracts of the letter.

What resulted was Associated Newspapers running news stories and coverage of the letter that was spread across five articles in the print edition of the Mail on Sunday and MailOnline. It was front page news that was billed as a “world exclusive” concerning a “sensational letter”.

In September 2019, the Duchess took legal action by filing a claim against Associated Newspapers for misuse of her private information, breach of duties under data protection legislation, and infringement of her copyright.

In its assessment of Markle’s complaint as to invasion of her privacy, the court applied a two stage test by asking:

  1. Whether she enjoyed a reasonable expectation of privacy in respect of the information in question; and
  2. Whether in all the circumstances the Duchess’ privacy rights must yield to the imperatives of the freedom of expression enjoyed by the publisher and their audiences.

Whilst it was acknowledged that Markle is “indeed a public figure” and “must accept a degree of intrusion that others would not have to bear”, Mr Justice Warby asserted that “it has long been established that a public figure does not, by joining that select group, give up her right to a private life, or open up every aspect of her private and family life or correspondence to examination in the press.” Overall, the Duchess did in fact have a reasonable expectation of privacy over the contents of her letter and she was deprived of that expectation.

As to the second stage of the test, it was plain that Markle’s Article 8 rights (the right to respect for one’s private and family life, home and correspondence) had been engaged. It was held to be “obvious… to some extent at least” that the letter and its subject-matter were both private in nature. In terms of assessing Markle’s Article 8 rights against the publisher’s competing Article 10 rights to freedom of expression, the ruling was clear that “there would be no real prospect of the Court striking the balance against the claimant and in favour of the defendant and its readers.”

Drawing upon another firmly established legal principle that articles “aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well-known that person might be, cannot be deemed to contribute to any debate of general interest in society,” Mr Justice Warby concluded that the complained of publication served no purpose other than satisfying public curiosity about the Duchess and was not capable of making any contribution to a debate of public or general interest.

In summary, Associated Newspapers’ disclosures were said to be “manifestly excessive and hence unlawful” and the interference with the publisher’s freedom of expression was “a necessary and proportionate” means of pursuing the legitimate aim of protecting the Duchess’ privacy.

Associated Newspapers’ claim that the letter was not a sufficiently original work to qualify for copyright protection was roundly dismissed by the judge. Nor could its publication of substantial and important extracts from the previously unpublished letter be considered fair dealing for the purposes of reporting current events.

In rare circumstances the court can allow a publication that would otherwise infringe copyright under its inherent jurisdiction not to allow its processes to be used contrary to the public interest. This was not one of those cases. The balance between copyright, a property right, and freedom of expression, another human right, is normally struck by means of the copyright fair dealing provisions without having to look beyond these to the European Convention on Human Rights.

Associated Newspapers’ argument that Markle might not have been the sole author of the letter seemed to the judge “to occupy the shadowland between improbability and unreality”. Not a lot was likely to turn on it but Associated Newspapers was entitled to a trial on this issue if it so wished.

Balanced commentary on high profile cases such as this is always hard to find. News media thrive on juicy celebrity exclusives and justify all manner of intrusions in the name of free speech, a vital element of democracy. Others would say their attitude towards private communications, such as a letter from a daughter to her father, is indicative of the British tabloid press’ unrepentant editorial practices even in a post-Leveson Inquiry world. Despite the headline-grabbing nature of this case since its outset, the findings of the judgment are unsurprising. By drawing upon well-established principles of privacy and copyright law, without setting any ground-breaking new precedent, the judgment traverses a wealth of case law and legal principles that will assist and provide guidance in the analysis of any privacy-centred case aimed at the media.

However, this may not be the last that we hear of this case. Although we would expect the case now to settle, a limited trial will otherwise be necessary to decide the “minor” issue as to whether Markle was the sole author and therefore sole copyright owner of the letter or whether her former communications director served as her co-author. Further, Associated Newspapers have stated that they are considering whether to lodge an appeal.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.