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- 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.

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

Parts of Meghan Markle’s claim against Associated Newspapers struck out following preliminary hearing

On 1 May 2020 Mr Justice Warby handed down judgment concerning a pre-trial application by Associated Newspapers in its ongoing defence of claims of misuse of private information, copyright infringement, and breach of data protection rights by Meghan Markle, HRH The Duchess of Sussex.

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Privacy protection in practice: The coronavirus and healthcare data

TTP extends its best wishes to all those impacted by the coronavirus and hopes that all are safe and well. For those readers based in the UK the NHS coronavirus guidance can be found here and Government guidance here. Stay home, stay safe.   Continue reading