Duchess of Sussex, Meghan Markle successful in privacy claim against the Mail on Sunday

Meghan Markle has been successful in her privacy claim against the Mail on Sunday regarding the publication of excerpts of the contents of a private letter to her father.

The Duchess’ request for summary judgment on the parts of the claim concerning privacy were granted by Justice Warby.

In finding that the statement of case had no reasonable grounds for defending the claim Warby J considered whether the defence stated has an defence had the ability to offer a defence to the claim of misuse of private information. Further,
“(i) at the time of its publication, the claimant had a reasonable expectation of privacy in respect of the contents of the Letter, and

(ii) this being the case, and
applying the requisite balancing exercise, the defendant has failed to discharge the burden which rests upon it to advance a viable justification for interfering with that
right.” at p.35

Question (i) – A reasonable expectation of privacy

Justice Warby considered whether the Defence set out and had a reasonable prospect of advancing that the claimant no expectation of privacy in the information at issue. Also whether there was an realistic prospect of success of the defendant defending this at trail. Warby considered the response to be no on both counts.

He strictly applied the criteria found in the Murray case:

“(1) The claimant was a prominent member of the Royal Family, and in that sense a public figure, who had a high public profile, and about whom much had been and continued to be written and published; this is an important feature of the background and the circumstances but

(2) the nature of the “activity” in which she had engaged was not an aspect of her public role or functions; she was communicating to
her father about his behaviour, its impact on her, her feelings about it, and her wishes
for the future; and

(3) she was doing this in a letter sent to him alone, privately, by means of a courier service.

(4) The “intrusion” involved the publication of much if not most of the information in the Letter by way of sensational revelations over four pages of a popular newspaper and online, to a very large readership; and that, in broad terms, was the purpose of the “intrusion”.

(5) There was no consent, and it is beyond dispute that this was known to or could have been inferred by Mr Markle and the defendant.

(6) The unwanted disclosure was likely to cause the claimant at least some distress,
especially as it was done with the co-operation of her father, and in the context of a detailed and critical response by him to the content of the Letter.

(7) The information
was given to the defendant by the claimant’s father.” at p.69

Question (ii) – the balancing exercise

Warby J next turned to the fact of whether the publication could be proportionate in pursuit of
the legitimate aim of protecting the rights of others? Is the interference with freedom
of expression that would be represented by a finding of liability necessary and
proportionate in pursuit of the legitimate aim of protecting the rights of the claimant?

In concluding that it could not significant weight was given to Ms Markle’s status as a public figure. It was considered a theme of the Defendant’s arguements that the Duchess had sought to manipulate her image to be seen favourably. In this case an arguement that publication was preventing the public from being misled- a weighty arguement indeed.

Warby J however considered the case “legally untenable or flimsy at best.” Concluding as two part (ii):

“The claimant had a reasonable expectation that the contents of the Letter would remain
private. The Mail Articles interfered with that reasonable expectation. The only tenable justification for any such interference was to correct some inaccuracies about the Letter contained in the People Article. On an objective review of the Articles in the light of the surrounding circumstances, the inescapable conclusion is that, save to the very limited extent I have identified, the disclosures made were not a necessary or proportionate means of serving that purpose. For the most part they did not serve that purpose at all. Taken as a whole the disclosures were manifestly excessive and hence unlawful. There is no prospect that a different judgment would be reached after a trial. The interference with freedom of expression which those conclusions represent is a necessary and proportionate means of pursuing the legitimate aim of protecting the claimant’s privacy.” at p. 128

The copyright infringement questions were partially disposed off. The remaining copyright issues were left to be considered following the directions given at the next hearing of 2 March 2021.

Mail on Sunday settle with Duke of Sussex, Prince Harry, over allegations regarding “distancing” from the British Armed Forces

A unilateral statement open court was presented before Justice Nicklin in the case bought by the Duke of Sussex against the Mail on Sunday.

The settlement concerns an article published on 25 October 2020 that alleged that the Prince had distanced himself from the British Army and the Royal Marines in particular ignoring correspondence from Lord Dannatt, a former Chief of the General Staff.

The Mail on Sunday and the MailOnline admitted the falisity of the statements.

The Statement recounted the Duke’s continuing efforts to engage with the British Armed Forces including the Royal Marines.

It highlighted that the article has remained published for 33 days, all the while disparaging the Duke’s relationship with the British Armed Forces.

A settlement offer was made to the Duke on 3rd December 2020 and accepted on 21st October 2020. Am apology to be placed in the Corrections and Clarifications columns was agreed.

As is typical with these statements attention was drawn to the fact that the intention was to settle the case and prevent further costly litigation. It was stated that the damage caused by the article in relation to these reparations was disproportionate.

The correction was published in the Mail on Sunday an area of the paper far smaller than the original article and in a right hand page which garners significantly more attention. There was no heading to the apology.

The MailOnline published a similar correction and clarification the garnered 9 shares compared to the 1,000 shares and 3,000 reader comments on the original article. The apology was also only published on the MailOline app for a period of 24 hours despite 64% of the readership having used the app to read articles, meaning a significantly less number of readers would have read the apology.

Importantly both Defendants were alleged to have used wording which significantly underplayed the seriousness of the complaint. Further they failed to acknowledge the statements were false meaning the Duke had to resort to a Statement in Open Court.

The Defendant had offered to donate the proceeds of the settlement to the Invictus Games Foundation. However, the apology did not state the Duke has decided to donate the settlement monies to the Invictus Games Foundation after receiving them himself so he could feel that some good had come of the case.

See coverage of the settlement on:

Inforrm

Sky

Independent

BBC

High Court limits the scope of general warrants under the Intelligence Act 1994

The Investigatory Powers Tribunal has held that general warrants cannot be used by the intelligence services to bulk surveil in a manner unless the purpose for the warrant is so specific as to be objectively ascertainable.

In the High Court on January 8 judgement was entered for the claimants responding to the question:

“Does section 5 of [the 1994 Intelligence Services Act] permit the issue of a ‘thematic’ computer hacking warrant authorising acts in respect of an entire class of people or an entire class of such acts?”

The Court found it did not.

In citing 250 year of caselaw the Court considered common law principles had well established an aversion to general warrants. They are simply to broad in scope, being able to apply to whoever or whatever the warrant searcher wishes accordingly:

It follows that a general warrant gives rise to an unlawful delegation of authority by the legally entrusted decision-maker to the executing official. This unlawful delegation breaches a fundamental right.

at p.30

It was up to the Secretary of State in this instance to decide the legality, proportionality and necessity of the application for a warrant and limit it in scope in so far as was absolutely necessary. Giving such discretion to an executing official in this case would be unlawful.

Further the Court stated plainly that the common law was strongly averse to statutory construction permitting such warrants to be lawful.

It went on to state:

The aversion to general warrants is one of the basic principles on which the law of the United Kingdom is founded. As such, it may not be overridden by statute unless the wording of the statute makes clear that Parliament intended to do so

at p.48

The Court then went on to provide further guidance as to what could or not be achieved by a warrant:

A warrant in respect of “any device used at the Acacia Avenue Internet Café during the period of six months from the date of issue of the warrant” would in our view be sufficiently specific, as would “anyone who appears on the FCDO Ruritanian diplomatic list during the period of six months from the date of the warrant”.”

at p.52

As for the impermissible broad brush approach:

“the mobile phone of any person conspiring to commit acts of terrorism”) would be insufficiently specific to satisfy the requirements of section 5(2). 

at p.53

The case represents a significant step in providing greater clarity around the restrictions on surveillance tools and the interpretation of legislation in light of the common law concerning general warrants.

A step towards safeguarding privacy, certainly, in the curtailment of investigatory powers in the bulk interception of communications. It also acts as a reinforcement of the checks and balances role of the Secretary of State in approving such tools to be used.

The Privacy International press release following the judgement can be found here.

Photo by Sora Shimazaki on Pexels.com

Developing a public interest defence to disclosures under the Offical Secrets Acts under English law – Part I

“It has now been
made clear beyond peradventure that members of the Security
Services owe a lifelong duty not to discuss their service experience
with the media….” Lord Kieth of Kinkel, The Spycatcher case at p.27, [1990] 1 AC 109

The above quote from the infamous Spycatcher case has long been entrenched under English Law.

However, it has been advanced that for Article 10 freedom of expression rights to be safeguarded there must be an implementation of a public interest defence to disclosing information that would otherwise be criminalised under the Offical Secrets Acts (“OSAs”).

Practically, cases such as that of Edward Snowden highlighted at an international level the need for such a defence to be clear, practical and consistently applied to ensure that they are effective at safeguarding the public interest and operating as a defence to disclosure in what can be the most sensitive of cases.

In the case of Shayler it was considered whether the provisions of the OSAs were compatible with Article 10 of the Convention. It was concluded that the provisions of the Act, whilst a prima facie limitation on Shayler’s right to freedom of expression, were a proportionate means of achieving a legitimate aim. The case highlighted the critical question- does our legislative framework sufficiently protect freedom of expression in this highly sensitive area? At that time it was consider it did, leaving the question of whether a public interest defence in disclosure was required to fall away.

As is, current OSA legislation does not yet provide a defence where public interest in the disclosure of information is advanced. Rather it has been left primarily unacknowledged by statute that this can cut both ways in article 10 cases where disclosures were made that would otherwise constitute criminal offences under the OSA’s.

It was in the Law Commission’s Report into antiquated spying laws published on 1 September 2020 that it was recommended a statutory public interest defence be introduced to the current framework. It was suggested that the means of the disclosure as well as the subject matter of the disclosure being in the public interest should be factors in the application of any defence.

However, the detail of the defence was not considered at length as it was considered that further consultation would be required for any recommendations to be made.

It is in the context that the campaign for such a defence has launched. Matrix’s Chamber’s press release reveals that person spearheading the campaign is “Janus Friis, a philanthropic technology entrepreneur”. Friis has instructed Mischon de Reya’s James Libson, Ben Brandon and Katy Colton and in turn Alex Bailin QC and Jessica Jones of Matrix Chambers. They are working with communications consultancy Powerscourt and have submitted a evidence to the Joint Committee on Human Rights.

The briefing paper for the campaign can be found here and provides an excellent analysis of the law and detail as to the intial form of the defence which is being lobbied for.

The Telegraph has coverage of this development.

Top 10 Defamation Cases 2020

In 2020 there were many significant defamation cases from across the United States, United Kingdom and Australia. These cases provided prominent forums for defamation cases and facilitated for significant development, analysis and application of the law.

  1. Depp v News Group Newspapers [2020] EWHC 2911 (QB) 

The highly publicised libel trial of Johnny Depp against the publisher of the Sun newspaper. The action came following the publication of an article characterising Depp as “wife beater Depp”.  It was concluded: 

“The Claimant has not succeeded in his action for libel. Although he has proved the necessary elements of his cause of action in libel, the Defendants have shown that what they published in the meaning which I have held the words to bear was substantially true.”    

There was an Inforrm case comment. Coverage from news outlets was also predictably broad with the IndependentNews.au and the Sun itselfDepp is reported appealing the finding.    

  1. Serafin v Malkiewicz & Others  [2020] 1 WLR 2455  

An action for libel and misuse of private information in respect to an article published in October 2015. The Supreme Court here provided guidance on s.4 of the Defamation Act 2020, the public interest defence. The case is also significant due to the rare instance of the UK Supreme Court ordering a full retrial in the case, concluding that “the justice system has failed both sides” with “deep regret” and “a degree of embarrassment in relation to respected colleagues” in the Court of Appeal. There was an Inforrm case comment and a comment from 5RB Chambers.  

  1. Gubarev v Orbis Business Intelligence Ltd [2020] EWHC 2912 (QB) 

A defamation trial concerning the publication of an article on Buzzfeed alleging that the claimants took actions to undermine the democratic party leadership throughout March-September 2016. It was not established that the defendant was responsible in law for the publication of the publication complained of.  There was an Inforrm case comment

4. Vardy v Rooney [2020] EWHC 3156 (QB) 

A preliminary trial as to meaning following Ms Rooney’s statement on her Instagram account that she had identified who was leaking details of her personal life to the Sun. There was an Inforrm case comment. As expected the case drew a media frenzy with commentary from the MetroCNNTelegraphDaily Mail and INews.   

  1. Campbell v Dugdale [2020] CSIH 27  

A case in First Division, Inner House of the Court of Session. The case concerns allegations that a tweet made by the claimant was homophobic. The then Leader of the Scottish Labour Party described the tweets as “homophobic” and described the author as “someone who sprouts hatred and homophobia towards others”. It was affirmed that the defence of fair comment was applicable here and the appeal was dismissed. Brodies LLP has a case comment.  

  1. 1704604 Ontario Ltd. v. Pointes Protection Association; Bent v. Platnick   

These two cases analysed anti-SLAPP legislation in Ontario providing a detailed review of the language of the legislation and how it ought to, theoretically, be applied. Plantick involved the application of these principles with the 5:4 split suggesting that there remains a high degree of judicial discretion at play in the application of Ontario anti-SLAPP legislation. There was an Inforrm case comment.  

7. Herron v HarperCollins Publishers Australia Pty Ltd (No 3)[2020] FCA 1687 

The case concerned allegations made in a book written by journalist Steve Cannane, published in 2016, which concerned the Church of Scientology in Australia. The Claimants sued for defamation over the book’s contents, despite the issues raised having been found against them by an enquiry 30 years previously. The case covered determinations of many factual matters and ultimately the claimants were unsuccessful. There was a  5RB news item

  1. Rush v Nationwide News [2020] FCAFC 115  

The Newspapers failed attempt to appeal against the original finding in the Geoffery Rush defamation case from last years list, this concerned the assessment of the award of damages made by the Court. The award of $2,872,753.10 to Mr Rush was upheld. The case was covered by the BBC.  

  1. Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102.  

A finding that establishes that media companies can be considered publishers of comments made by readers on their social media accounts. This means media companies can be held responsible for responses to media they post. The Court of Appeal majority in the case concluded: “it is not uncommon for persons to be held liable for the publication of defamatory imputations conveyed by matter composed by another person”.  

There was an Inforrm comment on the case. 

  1. Higgins v Irish Aviation Authority [2020] IECA 157.   

A €387,000 defamation award by a jury to an Aer Lingus pilot against the Irish Aviation Authority (IAA) has been cut to €76,500 by the Court of Appeal. Mr Justice Donald Binchy, on behalf of the three-judge COA, found the appropriate sum for general and aggravated damages was €76,500.  There were pieces in The Irish Examiner and the Sunday Times. There was a discussion on the Ronan Daly Jermyn website

Top 5 data breach fines since the implementation of the GDPR

Given the growing enforcement of the General Data Protection Regulation and the increased fine limits these laws impose we bring you our analysis of the 5 highest fines, along with the comments from the data protection regulators that issued them. These fines together showcase the practical implications of the new regulation and how some of the biggest companies fell foul of sanctions. Analysis is given as at 24 December 2020.

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