Quotes from caselaw 6: HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810- Megan Markle successful in defending appeal by Mail on Sunday

An appeal against the finding for summary judgment for her misuse of private information and copyright claim.

The appellant was granted permission appealed the elements of the case on seven grounds:

i) The new evidence issue: Whether the new evidence provided by each of the
parties should be admitted.

ii) The nature of the attack issue: Whether the judge mistakenly failed to
recognise the significance and importance of the People Article’s attack on Mr
Markle.

iii) The reasonable expectation of privacy issue: Whether the judge adopted a
flawed analysis of the factors undermining the Duchess’s alleged reasonable
expectation of privacy.

iv) The appropriate test issue: Whether the judge wrongly stated the test, by
suggesting that the defendant had to justify an interference with the claimant’s
right of privacy, when the proper approach was to balance the competing article 8 and 10 rights.

v) The right of reply issue: Whether the judge wrongly applied a strict test of
necessity and proportionality to Mr Markle’s right of reply to the People Article.

vi) The public interest/article 10 copyright issue: whether the judge failed
properly to evaluate the interference with article 10, saying that it would be a
rare case in which freedom of expression would outweigh copyright.


vii) The fair dealing copyright issue: whether the judge wrongly relied on his
privacy analysis to reject the fair dealing defence to breach of copyright, bearing
in mind the limited scope of the copyright in the Letter and the wide scope of
the concept of reporting current events.

The Sir Jeoffery Vos decided against the defendant on all grounds dismissing the appeal, in a unanimous judgment, stating summarily:

Essentially, whilst it might have been proportionate to disclose and publish a very small part of the Letter to rebut inaccuracies in the People Article, it was not necessary to deploy half the contents of the Letter as Associated Newspapers did. As the Articles themselves demonstrate, and as the judge found, the primary purpose of the Articles was not to publish Mr Markle’s responses to the inaccurate allegations against him in the People Article. The true purpose of the publication was, as the first 4 lines of the Articles said: to reveal for the first time [to the world] the “[t]he full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding”. The contents of the Letter were private when it was written and when it was published, even if the claimant, it now appears, realised that her father might leak its contents to the media.

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