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