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Meghan Markle’s law suit against Associated Press: litigation worthy of inclusion in the Crown or Suits

Published on July 7, 2020 by Charles Harrison and Martin SlatteryCharles Harrison and Martin Slattery

This article was first published in the Privacy Law Bulletin  Vol 17.1&2

Introduction

Her Royal Highness, the Duchess of Sussex, Meghan Markle (HRH) has commenced court proceedings – which are ongoing – in the UK against the publisher of extracts of a letter written by HRH to her father. This article examines the relevant legal considerations regarding:

• breach of privacy
• infringement of copyright
• data breaches

Key points/how does it affect you

Whether you are on board the “Megxit” train or not, this litigation provides a salient reminder of the English law in respect of copyright, privacy, and data protection. The case also provides ongoing consideration of what is ‘fair game’ and where the dividing line between the media’s coverage of public figures and their right to privacy sits. If the matter does proceed to a contested hearing and verdict, it will provide invaluable and timely guidance regarding these issues.

Facts

HRH is suing in Associated Press (the Defendant), which is the parent company of the Mail on Sunday (the Mail). The litigation, before the High Court, was commenced in October 2019.

The factual basis of the claim, put simply, is that on 10 February 2019 the Mail published parts of a letter sent by HRH to her father, Thomas Markle, in August 2018 (the letter). The excerpts of the letter that were published, somewhat ironically, deal with HRH’s requests that her father stop engaging with the tabloid press and spreading untruths through the media. Thomas Markle sent the relevant extracts of the letter directly to the Mail.

At the time of writing, the Defendant has filed a Defence to the litigation. There is yet to be a date scheduled for the contested trial which will occur if the matter does not settle beforehand.

Analysis

Copyright

Pursuant to the Copyright, Designs and Patents Act 1998 (UK) (CDPA), copyright protects original literary works and this includes letters. As the owner of a piece of work is generally its author, and pursuant to section 18 of the CDPA, the Mail’s publishing of the letter was prima facie restricted.

As the Mail did not have the consent of HRH to publish the letter, the Defendant is likely to plead the defence of ‘fair dealing’[1]. Specifically, that the publishing of the letter was for the purpose of reporting current events and/or for the purpose of criticism and review, or alternatively that publication of the letter was in the public interest.[2]

This defence will require the Mail proving that its use of the letter was overall “fair” and in considering this a Court will:

…“take into account if the work had already been published, or if it was publicly available, and whether there is a legitimate and continuing public interest in it publishing the letter”.[3]

A complicating feature of this matter is whether HRH implicitly consented to the Mail’s publishing of the letter. The basis of this claim by the Defendant is that the Mail’s publishing of the letter came within days after People Magazine in the UK published an article with five ‘unnamed’ close friends of HRH, in which these friends asserted that HRH disclosed information contained in the contents of the letter to them.[4] This may result in it being necessary for HRH to give evidence in Court around whether the substance of the letter was already in the public sphere.

In its defence, the Defendant pleads that the letter did not convey any “sensitive information” about HRH but did disclose information that she “had permitted to be put into the public domain”. It is further pleaded that “it was therefore reasonable to assume that [Meghan] would not object to matters concerning her relationship with her father being published”.

HRH Prince of Wales v Associated Newspapers Ltd [2006] EWCA Civ 1776 (Prince of Wales case) involved a case brought by the Prince of Wales against Associated Newspapers in circumstances where the Prince of Wales had his private diary entries published. The court in this case rejected Associated Newspaper’s defence of ‘fair dealing’ whilst also stating that the relevant test is objective and the words “reporting current events” are of wide and indefinite scope and require liberal interpretation.[5] Ultimately, the Court will be required to consider a number of factors – “the relative importance of any one factor will vary according to the case in hand and the type of dealing in question”[6].

In respect of the potential public interest Defence, this will also need to be analysed objectively. As noted by Hayleigh Bosher:

…“just because something is interesting to the public, does not mean that it is in the public interest. Public interest requires a higher level of justification, in order to justify the breach of the individual’s human rights”.[7]

Privacy:

HRH has also brought a claim pursuant to Article 8 of the European Convention on Human Rights. Article 8 concerns an individual’s right to respect for private and family life whereas Art 10 concerns the freedom of expression. Article 10 holds that:

The exercise of these freedoms, since it carries with it “duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society.

The requirements of this action include:[8]

• the information was private;
• the receiver of the information knew, or ought to have known, that the information would be reasonably regarded as private; and
• the information was used without authorisation to the detriment of the party communicating it.

The defendant pleads in its defence that the contents of the letter “were not private or confidential, self-evidently or at all” and that HRH “did not have a reasonable expectation of privacy”.

Similar arguments were raised in the Prince of Wales case, in that his diary entries were protected by Article 8. In that instance, Blackburne J found in favour of the Prince of Wales:

…the right to be able to commit his private thoughts to writing and keep them private, the more so as he is inescapably a public figure who is subject to constant and intense media interest…[he] is as much entitled to enjoy confidentiality for his private thoughts as an aspect of his own ‘human autonomy and dignity’ as is any other[9].

The current case, however, deals with a letter sent to a third party, which in part appears to be a request that the receiver of the letter ceases the practice of sharing personal information with the media. It will be interesting to see how the Court interprets whether there could be a reasonable expectation that the request be heeded and therefore the letter itself remain private, or whether the alternative interpretation that someone who has demonstrated a practice of sharing personal information could reasonably be expected to stop that practice.

Data protection breach:

A further issue requiring consideration by the High Court is whether the letter constitutes “personal data” as defined in the Data Protection Act 2018 (UK) (DPA)[10]. If HRH’s “personal data” was processed without consent, this will result in contravention of the DPA.

Section 2 of the DPA requires “personal data to be processed lawfully and fairly, on the basis of the data subject’s consent or another specific basis” and, in carrying out these functions, “matters of general public interest”, and other matters, must be taken into account.

Furthermore, section 8 of the DPA, in interpreting Article 6(1) of the GDPR’s protection as to the processing of data “necessary for the performance of a task carried out in the public interest”, holds that processing of personal data which “is necessary for an activity that supports or promotes democratic engagement”[11] will be deemed lawful.

The defendant pleads in its defence that “it is not unfair for [Associated Newspapers] to publish material about [Meghan], a member of the royal family, that she does not like” and that publication of the contents of the letter “was and is in the public interest”. On this point, it is further pleaded that “there is a huge and legitimate public interest in the royal family and the activities, conduct and standards of behaviour of its members” and that “this extends not merely to their public conduct, but to their personal and family relationships because those are integral to the proper functioning of the monarchy.”

The defence in effect raises existential questions for both parties:

• Are the lives of Royals really so important to the extent that every aspect of their lives should be considered as being in the public interest?
• Does the tabloid media’s reliance on the cult of celebrity, be it Royal or otherwise, become a self-fulfilling prophesy of simply being in the public interest because the media deem it being worthy of coverage, in turn upholding the idea of the importance of the celebrity aspect of Royals in general?

If the matter does not settle, it will proceed to a contested final hearing – the date of which has not been set.

Conclusion or practical implications

This case is likely to result in significant ramifications for the future conduct of the modern media and the Royals with the potential to have effect over public figures’ right to privacy in general.

The litigation has naturally provided ongoing and significant fodder for fleet street and the global media. More importantly, it has given to pause to practitioners in the spheres of copyright, privacy, and data protection. If the matter does proceed to verdict, it will provide timely judicial guidance in respect of these complex legal issues. If nothing else, it will make for gripping viewing for a future season of the Crown.

 

Charles Harrison, Associate

Martin Slattery, Partner

11/533 Little Lonsdale Street, Melbourne

Charrison@codea.com.au or (03) 9049 7101

Mslattery@codea.com.au or (02) 9291 7138