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Meghan Markle, the Duchess of Sussex, has won a claim in the High Court against Associated Newspapers Ltd, the publisher of the Mail on Sunday and MailOnline. The Duchess sued in misuse of private information, data protection and copyright over extracts published from a private handwritten letter she sent to her estranged father, Thomas Markle.

The judgment in favour of the Duchess is available here: HRH The Duchess of Sussex v Associated Newspapers [2021] EWHC 273 (Ch).

Misuse of Private Information

Privacy law in the UK has developed from domestic case law following introduction of the Human Rights Act 1998 (HRA). The HRA enshrines in UK law the protections afforded by the European Convention for the Protection of Human Rights (the Convention).

The HRA will not be affected by Brexit, as the Convention is an internationally binding treaty separate from the UK’s membership in the EU. The UK right to private and family life is protected by Article 8 of the Convention and the tort developed from traditional ‘breach of confidence’ actions into an action in its own right, known as misuse of private information.

Article 8 of the Convention provides:

“8.1 Everyone has the right to respect of his private and family life, his home and his correspondence.

8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or the protection of the rights and freedom of others”.

This right is known as a ‘qualified right’ that is to say that it can be interfered with if justified but only in so far as the legitimate aims of 8.2 are met.

The tort will cover two aspects of an individual’s right to privacy, namely:

  1. Protection against the actual misuse of private information, for example, by publishing the private information. This is sometimes referred to as the “confidentiality component”; and
  2. Protection against unwanted access or intrusion into an individual’s private space, sometimes referred to as the “intrusion component”.

The leading case remains Campbell v Mirror Group Newspapers Ltd [2004] UKHM 22. In this case the House of Lords, as was, confirmed the primary test for concluding whether or not information qualifies for the protection under Article 8  is “whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy” (emphasis added).

In considering this question the Court makes an objective assessment of all circumstances, including:

  1. A Claimant’s attributes;
  2. The nature of the activity;
  3. The place at which it was happening;
  4. The nature and purpose of the intrusion;
  5. The absence of consent and whether it was known or could be inferred;
  6. The effect on the Claimant; and
  7. The circumstances in which and the purposes for which the information came into the hands of the publisher.

It can also be a relevant factor if the information is already, or is about to be, in the public domain. This may result in the expectation of privacy being limited or lost.

The second stage of the test is whether any privacy rights outweigh the rights of freedom of expression enjoyed by the publishers, which are protected by Article 10 of the Convention. Article 10 is often relied on in misuse of private information cases, and provides that:

10.1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

10.2 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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

As with Article 8, Article 10 is a qualified right, which can be interfered with, if justified.

The Duchess’ Claim

The Duchess sent her father a five-page letter three months after her marriage to Prince Harry. Her father replied.

In February 2019 large parts of the Letter were then published by the Defendant’s newspaper, the Mail on Sunday and online at MailOnline and the Duchess commenced legal action against Associated Newspapers in September of that year.

The Duchess’s misuse of private information claim that the Letter related to her private and family life and did not relate to her public profile, or that of her work, as summarised at paragraphs 4 & 33. She argued, among other things, that the Letter disclosed intimate thoughts and feelings, personal matters and, crucially, that there was no legitimate public interest in the matters therein or in publication. Accordingly, she asserted her reasonable expectation that the contents would not be published to the world at large by a national newspaper.

Associated Newspapers’ Defence

Naturally, the publisher denied the claim, arguing that the Letter was neither private nor confidential and that the Duchess did not, in fact, have a reasonable expectation of privacy.  Associated asserted in the alternative, that if the Duchess had any rights to privacy, those rights were in fact only “slight, and [were] outweighed by the need to protect the rights of her father and the public at large.” Associated argued that any privacy rights that may have been enjoyed by the Duchess were either (1) limited, due to the “legitimate public interest in the activities of the Royal family”, and of her high-ranking status within that family or (2) had been destroyed, due to her knowledge of her father’s propensity to speak to the media about their relationship, the fact that publication of the existence and contents of the Letter was lawful in the US, her own conduct in causing, authorising, or intending publicity about the Letter and/or her relationship with her father more generally and/or the publication of information about the Letter.

Application for Strike out and Summary Judgment

The Duchess made an application for summary judgment and to strike out this defence (as well as that pertaining copyright infringement).

Where a defence is filed, a party may apply to the Court to strike it out entirely, or in part, if “it appears to the court […] that the [defence] discloses no reasonable grounds […]”.

Further, a Court can grant summary judgment against a defendant if it considers that “the defendant has no real prospect of successfully defending the claim or issue” and further that “there is no other compelling reason why the case or issue should be disposed of at a trial”.

This is a high bar and a Court will not take these steps lightly.

Paragraph 13 of the judgment sets out the key principles for a Court to consider whether deciding whether or not to summarily dispose of a case.

The Judgment

In considering stage one the Judge concluded that the Duchess would be “bound to win at trial on this issue” (see paragraphs 64 – 95 for the very detailed reasoning).

In applying the factors above, the Court noted that:

  1. Whilst the Duchess was a prominent member of the Royal Family, the nature of the activity was not an element of the role and function as such a member.
  2. The letter itself was privately addressed to Mr Markle alone and had been delivered by courier, further emphasising the private nature of it.
  3. The nature of the “intrusion” was the publication by a national newspaper and online to a much larger audience – which was also noted to be the purpose of the intrusion itself; sensational headlines for more readers.
  4. There was plainly no consent.
  5. Given it was an unwanted disclosure, it was foreseeable it would cause some distress.
  6. The information was given to Associated by the Duchess’s father, further exacerbating her distress.

There were two questions the Court answered in favour of the Duchess in considering stage two of the test:

  1. Was the interference (i.e. the publishing of the Letter) necessary and proportionate in pursuit of the legitimate aim of protecting the rights of others?
  2. On the other hand, is the interference with the freedom of expression, necessary and proportionate in pursuit of the legitimate aim of protecting the rights of the Claimant?

The Judge noted that Associated’s case was in some respects “flimsy at best”, particularly its reliance on the Duchess’s father’s propensity to disclose matters of a personal nature to the public. Furthermore, the contents of the Letter were not actually in the public domain at the time of first publication.

One crucial aspect of Associated Newspapers’ defence was that it was trying to correct the record and was justified in publishing the Letter to protect the public from being misled.

Here, it was Mr Markle’s view that a previous US People Article was misleading so “he had no choice” but to disclose the Letter.  Associated argued that because Mr Markle maintained the People Article had misrepresented him and/or the Letter, they were “bound to give him a platform to put his side of the story”.

The Judge was not persuaded by this and indeed found that Associated “had not adopted Mr Markle’s account“. The Judge went further to say that the use of the Letter in this context was not actually explained by Associated Newspapers in any event and he did not agree with Associated Newspapers’ assertion that the “inaccuracies in the 25 words of the People Article” justified the publishing of large parts of the Letter.

Accordingly the Judge decided that the Duchess was entitled to summary judgment and she has subsequently been awarded a £450,000 interim payment towards her costs of this action.

Grant Saw Solicitors

Grant Saw’s Media, Libel and Privacy Team can advise you about steps you can take if your private information or correspondence has been published and we can explore funding options with you.

If you would like further advice or information about the matters above or other privacy or data protection issues, please contact Angus Young or Adina-Leigh Collins in the Grant Saw Media, Libel and Privacy Team.