MThe 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- failed.
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.
The Privacy Perspective 