By Gabriel Princewill-
Publishers of the Mail on Sunday agreed to pay “financial remedies” to the Duchess of Sussex, three years after she began a privacy battle over a handwritten letter to her estranged father.
On Sunday, the newspaper printed a statement at the bottom of its front page, informing its readers that the duchess had won her legal case for copyright infringement against Associated Newspapers, for articles published in the Mail on Sunday, and posted on Mail Online.
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The statement was an order from the court acknowledging its transgression of the law, and expressing a belated apology for its misuse of the duchess’s private information under the data protection legislation, and also its infringement of her copyright in the letter.
The Duchess Of Sussex had sued Associated Newspapers over five articles, after they reproduced extracts from a “personal and private” letter to Thomas Markle in August 2019, about which she had a “reasonable expectation” of privacy regarding the contents of the letter, according to the judge. “Those contents were personal, private, and not matters of legitimate public interest,” the court said.
The publication’s admission of infringement of copyright alongside the agreement of financial remedies, was a far cry from what the publication expected when it published the personal letter from the Duchess Of Sussex, purportedly to expose a level of hypocrisy allegedly being exhibited when her friends gave an what was adjudged an inaccurate account to the People paper.
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The paper’s legal team seemed to have put up a good legal fight at the preliminary stages of the case, canvassing arguments that seemed to undermine the credibility of the duchess’s case- most notably to do justice to her father, whom the publication said had been grossly misrepresented by friends of Meghan Markle.
The paper’s rebuttals would be dismissed without a trial; the presiding judge indicating that it had only a ‘fanciful prospect’ of success at trial, not a realistic one. ”The overriding objective of “deciding cases justly and at proportionate cost” does have a role to play if the Court concludes there is no realistic prospect of a successful defense, Lord Warby said.
Reasonable Expectation Of Privacy
Meghan had argued that the letter reflected her intimate thoughts and feelings; adding that they were personal matters, not matters of legitimate public interest; and that she enjoyed a reasonable expectation that the contents would remain private and not be published to the world at large by a national newspaper.
She further claimed that the defendant’s conduct in publishing the contents of the letter was a misuse of her private information under the data protection legislation.
Experienced lawyers of the Associated Press argued that Meghan had no reasonable expectation of privacy because any rights she had with respect of the letter was diminished by the legitimate public interest the public had in the royal family and her status as a high ranking member of that family, and destroyed, weakened or compromised by her knowledge of her father’s propensity to speak to the press . Any privacy interest she enjoyed was slight, and outweighed by the need to protect the rights of her father and the public at large, they argued.
However, the counter arguments presented by the paper were dashed without a trial .Justice Warby described the case as ”plain and obvious” , adding that ”so long as the lens is not obscured by fog or dust, it may be possible to see clearly that a case has only one plausible outcome, and a trial is superfluous”.
He said the overriding objective of “deciding cases justly and at proportionate cost” does have a role to play if the Court concludes there is no realistic prospect of a successful defense, and the question arises whether there is “some other compelling reason” for a trial. At that point, the Court would be bound to have regard to considerations such as saving expense, proportionality, and the competing demands on the scarce resources”, Lord Warby said.
Human Rights Act
Lord Warby also cited the Human Rights Act 1998 which obliges the Court to interpret, apply and develop English law in conformity with the European Convention on Human Rights. Where an individual complains that her privacy has been violated by newspaper reports, the Court must ensure that its decision properly reconciles the competing Convention rights: those protected by Articles 8 and 10. Article 8(1), so far as relevant, requires the state to respect a person’s “private and family life … and [her] correspondence”.
At stage two, ”the question is whether in all the circumstances the privacy rights of the claimant must yield to the imperatives of the freedom of expression enjoyed by publishers and their audiences”, he said. The competing rights are both qualified, and neither has precedence as such. The conflict is not to be resolved mechanically, on the basis of rival generalities.
The Court must focus intensely on the comparative importance of the specific rights being claimed in the particular case; assess the justifications for interfering with each right; and balance them, applying a proportionality test.
He added that the Court must have regard to the extent to which it is or would be in the public interest for the material to be published. The decisive factor at this stage is an assessment of the contribution which the publication of the relevant information would make to a debate of general interest.
He said that at the time of its publication, the claimant had a reasonable expectation of privacy in respect of the contents of the Letter, and 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.”
Re-shaping
Afterwards the duchess called for a reshaping of the tabloid industry and spoke of how she had been patient in the face of “deception, intimidation, and calculated attacks”.
In her statement, she said: “This is a victory not just for me, but for anyone who has ever felt scared to stand up for what’s right. While this win is precedent-setting, what matters most is that we are now collectively brave enough to reshape a tabloid industry that conditions people to be cruel, and profits from the lies and pain that they create.
“From day one, I have treated this lawsuit as an important measure of right versus wrong. The defendant has treated it as a game with no rules. The longer they dragged it out, the more they could twist facts and manipulate the public (even during the appeal itself), making a straightforward case extraordinarily convoluted in order to generate more headlines and sell more newspapers – a model that rewards chaos above truth.
“In the nearly three years since this began, I have been patient in the face of deception, intimidation, and calculated attacks. Today, the courts ruled in my favour – again – cementing that the Mail on Sunday, owned by Lord Jonathan Rothermere, has broken the law. The courts have held the defendant to account, and my hope is that we all begin to do the same. Because as far removed as it may seem from your personal life, it’s not.
“Tomorrow it could be you. These harmful practices don’t happen once in a blue moon – they are a daily fail that divide us, and we all deserve better.”
Associated Newspapers said at the time that it was “very disappointed” by the ruling and an appeal to the supreme court was being considered.
The duchess’s costs had been estimated at £1.5m before the appeal, but that figure will have increased with the appeal.
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