What does the Meghan ruling mean for publishers?
14/12/2021
I rather suspect that all this column’s readers are already aware of the recent decision of the Court of Appeal, in the claim brought by the Duchess of Sussex, Meghan Markle, against Associated Newspapers for breach of her privacy rights and infringement of copyright.
Which is helpful, as there’s no need to recap the facts. Suffice to say that last February, the High Court ruled that the Duchess had successfully obtained summary judgment in her privacy and copyright case against Associated Newspapers, meaning that a full trial would not take place. We wrote about the decision at the time, and our earlier piece can be read here.
The publishers then appealed, and as is now well known, the Court of Appeal judges dismissed the appeal and upheld the earlier judgment (from Mr Justice Warby) in full.
Privacy
In bringing the Appeal in relation to the privacy aspect of the claim, Associated argued that the initial ruling:
- had failed to take into account the significance of the publication as correcting an inaccurate portrayal of Mr Markle in a US magazine article;
- prevented Associated from being able to adduce evidence at trial which would allegedly undermine the strength of Ms Markle’s privacy interests; and
- had given the right to privacy more weight than the competing right of freedom of expression, when as a starting point they should be given equal weight in the balancing exercise.
The Court of Appeal disagreed with Associated on all three points, stating that the publication served essentially as “more of the same” attack on Mr Markle, and the focus was on revealing the contents of the letter, rather than focusing on the defence of Mr Markle.
In relation to the second point, the Court of Appeal ruled that just because Ms Markle might have attempted to control media reporting about her relationship with her father, she did not put the private letter into the public domain. An alleged disclosure to a publisher, and the fact that Ms Markle knew it was possible that the letter would be leaked, did not mean that Ms Markle wished for the letter to be in the public domain.
On the third issue, the Court of Appeal again backed Mr Justice Warby’s earlier ruling, stating that he was correct in his application of the law and that he was entitled to find that the publication was not justified in the public interest, given that it glorified the publication of the contents of the letter and had minimal effect as a rebuttal of the earlier US article.
There’s no doubt that this Court of Appeal ruling is an important one in relation to privacy law. That said, the ruling relates to the almost unique facts of the case.
But what journalists should take away from this decision is the need to ask two questions: first, is there a strong public interest in disclosing ‘private’ correspondence? And second, if there is, is the intended disclosure proportionate, rather than gratuitous or excessive? It appears that the Courts will reject out of hand any such excessiveness or gratuity.
Does the ruling alter the law substantially when it comes to private correspondence relating to matters of strong public interest, such as political matters? Possibly not.
Copyright
Not so much has been written about the decision regarding the copyright claim, but in many ways, this is rather more important for day-to-day journalism.
I recognise that journalists are not always that keen on having to deal with copyright, which has a reputation for being dry, technical, and, well, a bit dull.
But every working journalist needs to be familiar with the ‘fair dealing’ defence contained in section 30 sub-section 2, of the Copyright, Designs, and Patents Act 1988. Why? Because this is the provision which says that if you are reporting a current event, you will not infringe copyright if you deal fairly with the copyrighted material and you give an acknowledgement to the copyright owner (NB – this protection does not apply to photographs).
Trying to define’ fair dealing’ is very difficult. Although you know it when you see it, the Act is silent on the meaning of this phrase, and so it has been left to the courts to provide guidance.
Which is why the Court of Appeal’s decision is helpful (even though this part of the appeal was also dismissed).
In upholding the decision of the High Court, the Court of Appeal Judges took the opportunity to examine this issue in detail. The upshot was that the Mail on Sunday was unable to “seriously impugn” the approach of Mr Justice Warby and the balancing exercise he carried out between the protection offered by copyright law and the fairness of the publication. Although the judges were brief in dealing with this issue, they took the opportunity to explain that if a journalist is contemplating using copyright protected material, that decision will have to be justified by reference to all the facts, and whether the material (and the copyright owner) have been treated fairly. As ever, a court will decide on fairness after an intense scrutiny of the facts.
And so to the key question – what does this the ruling mean for publishers and journalists? As ever…. it depends!
In terms of privacy, there is no doubt that the Court of Appeal’s decision will shape future privacy law significantly. It is no coincidence that privacy campaigners have very much welcomed the ruling.
But at a practical level, the court’s decision on copyright infringement and fair dealing is just as important. The outcome might not have been what publishers wanted, but at least we have been provided with clarity as to what is, and is not, fair.
Turns out copyright law in practice is not so dull after all!