The feud between Meghan Markle, Duchess of Sussex, and Associated Newspapers Limited (“ANL”) (which owns a portfolio of national newspapers including the Daily Mail, the Mail on Sunday, and MailOnine) has been an ongoing saga since the Duchess’ marriage to Prince Harry in 2018.
The acrimony between the parties has led to various legal actions including the Duchess’ claim against ANL following the publication of content taken from a handwritten letter the Duchess sent to her father, Thomas Markle. It is understood that the Duchess sent the letter to Mr Markle in August 2018 shortly following her wedding to Prince Harry which had taken place in May 2018.
The existence of the letter first emerged in an article in the American publication, People Magazine, where an anonymous source had described it as a “loving letter”. However, Mr Markle disagreed with this interpretation and in his view the letter had not represented an “olive branch” or an attempt to reconcile their relationship.
Mr Markle provided a copy of the letter to journalists working for ANL purportedly to defend himself against the alleged misrepresentation of the letter in People Magazine. This led to contents from the letter being published in the Mail on Sunday and the MailOnline.
In response to the publication, in 2019 the Duchess commenced legal action in the High Court against ANL citing several legal causes of action including a misuse of private information, infringement of copyright and Data Protection Act breaches.
The Duchess’ legal team subsequently made an application for summary judgment.
Summary judgment application
An application for summary judgment can be made to the Court by either a claimant or defendant during civil litigation proceedings. The court may grant summary judgment in respect of the whole claim or a particular issue in a claim. In this case, the Duchess made an application for summary judgment in relation to the claims for misuse of private information and breach of copyright. She did not apply for summary judgment in relation to the Data Protection Act claim.
As the claimant in the case, the Duchess was required to satisfy the Court that the following two-stage test had been met in order to be successful in her application:
The test is a high threshold to meet. If the Defendant can show some realistic prospect of success, the Court will not grant summary judgment and the matter will proceed to a full trial.
Once an application is submitted, the court lists a hearing to consider the arguments of both parties regarding whether the proceedings should or should not be permitted to proceed to a full hearing.
An application for summary judgment requires a judge to analyse the statements of case from both parties, without reference to oral evidence. The Duchess was therefore not required to attend the hearing and she did not submit a witness statement.
During the hearing, the Duchess’ legal representatives argued that the letter under consideration was private and confidential. As a result, they stated that the publication of the letter was a clear breach of the Duchess’ privacy rights warranting the judge to enter summary judgment and dispose of the proceedings.
ANL’s legal representatives argued that ANL had not breached the Duchess’ privacy rights and they had legitimate interests in publishing the letter. It was their position that even if the court did decide that the Duchess’ privacy rights had been breached, the breach would be outweighed by the need to protect the rights of Mr Markle and the public at large.
The Court’s decision
Having considered all the evidence, the Court granted summary judgement in favour of the Duchess in respect of her claim for misuse of private information and most elements of her copyright claim. The Court found that that ANL’s Defence was so lacking in merit in this respect that these claims should not proceed to a full trial.
The court reached this decision as it deemed that the Duchess had a reasonable expectation of privacy in respect of the letter.
The court accepted that if the Mail had published limited information from the letter to correct the suggestion that the letter had represented an “olive branch”, this may have been justified. However, ANL published substantial parts of the letter including sections which were not relevant to achieving this purpose. The Court deemed that this was neither necessary nor proportionate.
As a result, the Duchess was successful and granted summary judgment in her claim for the misuse of private information.
The Court also granted summary judgment on most of the claim for copyright infringement, but stated that it could not determine the issue of copyright ownership at the summary judgment stage as it could not be certain that the letter was the work of the Duchess in its entirety.
In the absence of agreement between the parties, the case will proceed to a full hearing which will deal with the remaining elements of the copyright claim and remedies.
This judgment is significant as, if the application had been unsuccessful, the case would have proceeded to a trial at which the Duchess and her father would have been required to give evidence on the witness stand.
Notwithstanding the emotional pressure of giving evidence, this would have undoubtedly given rise to a media frenzy surrounding the case which has now (to some extent) been avoided. Further to this, the outcome has succeeded in minimising legal costs.
The decision echoes the decision in HRH Prince of Wales’ past legal claim against ANL. That case was decided in 2006 and related to the fact that extracts of Prince Charles’ private journal following an official visit to Hong Kong in 1997 were published by ANL. The Court in that case also granted summary judgment in favour of HRH Prince of Wales, in respect of his claims for breach of confidence and breach of copyright.
The Duchess is likely to hope that this judgment, which reinforces the importance of the privacy rights of even the most high profile individuals and “high ranking members” of the Royal Family, will act as a deterrent to the tabloid press as the Sussexes continue to cement their position outside of the Royal Family and further to the recent announcement that the Duchess is pregnant with her second child.
However, ANL has stated in their summary of the judgment on the MailOnline that they are considering whether to appeal and this may therefore not be the last we hear of the privacy claim. .
In the meantime, a hearing has been listed on 2 March 2021 to set directions relating to the remaining elements of the copyright claim and to determine remedies which we would of course expect to include financial compensation.
JMW’s Media law and Reputation Management team provide pre-and post-publication media advice. If you would like to discuss a reputation management or media law issue, you can call us on 0345 872 6666 or fill in our online enquiry form and let us know a suitable time to get back to you.