What does the Duchess of Sussex’s privacy win mean for journalists?
23/02/2021
Last week judgment was handed down in the case of HRH Duchess of Sussex v Associated Newspapers Limited. The Duchess of Sussex, otherwise known as Meghan Markle, was successful in her application for summary judgment in her privacy and copyright claims (save for one technical point in relation to the latter) against Associated, which means she has won those aspects of the case and they will not go to trial.
As is well known, the case arose from the Mail on Sunday’s publication of large excerpts of a letter written by the Duchess of Sussex to her father, Thomas Markle, in August 2018. The letter followed the well-reported relationship difficulties between Meghan and her father in the run up to her wedding to Prince Harry in May 2018. In the letter the Duchess addressed both current and historical issues with, and feelings towards her father, as well as his engagement with the tabloid press.
The Duchess of Sussex objected to the publication on three grounds: firstly, that it was a private letter and publication of it was a misuse of private information; secondly, that the publication breached the copyright in the letter, of which she was the owner; and thirdly, that the publication breached data protection laws.
The summary judgment ruling handed down by Mr Justice Warby last week ruled in the Duchess’ favour on the first two of those claims (save for the issue of whether there was a co-author of the letter for the purposes of the copyright claim). The data protection claim was not part of the application.
Associated had argued that the publication of the extracts from the letter was in the public interest and was necessary in order to correct “inaccuracies” in an article relating to the same letter which had been published in a US magazine.
In his ruling, Mr Justice Warby came down firmly on the side of the Duchess, stating that the letter was about “inherently private and personal matters” and that for the most part, the disclosure did not serve the purpose argued by Associated at all. He went on to conclude that the “disclosures were manifestly excessive and hence unlawful” and that there “was no prospect that a different judgment would be reached after a trial”.
Associated has expressed its disappointment with the ruling and says it is considering its position in relation to an appeal.
So, what does the decision mean for journalists?
The starting point is clear enough: we have known for a long time that personal correspondence between individuals is private and there is a reasonable expectation of privacy in respect of it. That reasonable expectation of privacy can only be overcome if it is in the public interest to publish the document, or some of its contents. The court carries out a balancing exercise to determine which of the conflicting rights – freedom of expression or privacy – is to prevail.
Some legal commentators are hailing this judgment as a disastrous ruling for the press and a win for PR specialists, who they say will now be able to manage better their client’s reputations and prevent disclosures of private correspondence.
Others, however, are pointing out that the correspondence in question would always have been deemed to be private, subject to the public interest overriding that assumption.
In reality, this case was decided entirely on its facts, and the judgment does not change the laws of privacy or copyright.
That said, in practice this ruling should act as a reminder to journalists that personal correspondence is inherently private and any public interest justification for publication must be extremely strong – and even then, any publication must be proportionate and not excessive.
Does the ruling mean that leaked documents and correspondence relating to government business or elected figures and their political and business dealings will be subject to the same treatment by the Courts? Well no, probably not. In those cases, it is likely to be business as usual.
But as ever, the issue which will have concentrated the minds of senior journalists and executives is the costs order that was also made in favour of the Duchess. With press speculation putting her legal fees at several millions of pounds, the outcome provides just as much food for thought for finance teams as for journalists.
So all in all, the judgment is a significant reminder that private correspondence has to be treated with the utmost care and consideration.