On 01 October 2019, the Duke of Sussex announced in a statement posted to his website that his wife would be taking legal action against The Mail on Sunday and the paper’s owners, Associated Newspapers. In that statement the Duke said that he and his wife had been forced to take legal action against what they described as “relentless propaganda”. The legal action centres on a letter sent by the Duchess to her father, parts of which were extracted and published by The Mail on Sunday.

The Duchess has made legal complaints based on misuse of private information, infringement of copyright and misuse of personal data. The Duke and Duchess have stated that the proceeds of any damages successfully obtained will be donated to an anti-bullying charity.

The Mail on Sunday said that “The Mail on Sunday stands by the story it published and will be defending this case vigorously.”

Following the recent filing of The Mail on Sunday’s 44 page defence, we consider the legal issues that potentially arise in the Duchess of Sussex’s claim.

What is “Misuse of Private Information”?

Cases of misuse of private information concern “the protection of human autonomy and dignity – the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people”. In the context of a newspaper article, misuse may arise through publication or a threatened publication of private information. Importantly, private information is not limited to “secrets” but also covers an intrusion into the personal life of the individual.

A claimant, and in this instance the Duchess of Sussex, will need to show that they have a reasonable expectation of privacy in the information in question, and that their right to privacy outweighs any rights of the publisher to disclose the information, or interests of the public in being aware of that information.

Within its defence, The Mail on Sunday seek to argue that the Duchess is a “major public figure, whose fitness to perform royal duties on behalf of the Crown and to be the recipient of public money is a proper matter for public scrutiny”.

It is understood that The Mail on Sunday also argues within its defence that the Duchess did not have a reasonable expectation that the contents of the letter would remain private, as there was “no mutual understanding” between her and her father that it would remain secret.

Over the last few weeks, the Duke and Duchess have stated their intention to “step back” as senior members of the royal family, and expressed a desire to become financially independent. It is clear that the Duke and Duchess wish to redefine their public roles, together with their relationship with the Press.

The mere fact that the Duchess is a member of the royal family does not deny a right to privacy, particularly where that relates to her private family relationships. The court will consider factors such as the nature of what was being reported on, the context in which the letter was exchanged between her and her father, and the alleged absence of consent to the publication by the Duchess.

If the court finds that the Duchess of Sussex did have a reasonable expectation of privacy, it will then conduct a balancing exercise between the competing rights of The Mail on Sunday to publish, and the public to receive the information, and the Duchess’s right to privacy.

The Mail on Sunday has indicated that in addition to pointing to the public role of the Duchess within the royal family and the Sussexs’ engagement with the media, it will rely on an allegation that the Duchess permitted friends to engage with the media, including, for example, in respect of an article published in People magazine four days prior to The Mail on Sunday’s article, which included reference to the letter now in issue. The Mail on Sunday reportedly point to the People article as providing Mr Markle with an opportunity to correct what he believed to be a damaging representation of him within the People article and to avoid the public being otherwise misled. We return to the involvement of Mr Markle below.

What is Copyright?

Subject to the circumstances, the content of a letter can be covered by copyright law.

Copyright gives the owner of a protected work the exclusive right to utilise the work. The work may be an original literary, dramatic, musical or artistic work, sound recordings or films, or typographical arrangement. Subject to certain limited exemptions, copyright prevents anyone who is not the copyright owner from copying or reproducing the work (in whole or in part).

The Mail on Sunday extracted only parts of the letter in issue; which the Duke described within his press statement as “strategically omitting select paragraphs, specific sentences, and even singular words to mask the lies they had perpetuated”. The Mail on Sunday reportedly disputes this claim, arguing that the extracts it published conveyed the tone, content and meaning of the letter.

In any event, The Mail on Sunday argues in defence of the copyright claim that the letter does not qualify as copyright protected works, as it merely recounted existing facts. It also alleges that the letter was “immaculately copied” in the Duchess’s handwriting and that such care taken in the presentation and content meant the Duchess anticipated it may be seen by a wider audience than just Mr Markle.

Legal claim under data protection legislation

The Duchess has also reportedly argued that the Mail on Sunday breached her data protection rights.

The law that regulates data protection is called the General Data Protection Regulation or “GDPR”, and the Data Protection Act 2018. Under data protection legislation, a data subject has the right to control how their data is processed, subject to limited exemptions. It is possible to bring a data protection claim alongside a privacy claim, and other legal complaints eg perhaps defamation or harassment.

In its defence, The Mail on Sunday alleges that the information within its article relates to is data that the Duchess herself placed into the public domain, and that its processing was therefore not unlawful. It also disputes that the data qualifies as sensitive data.

Looking ahead

It has been widely reported that there may be the release of further private text messages between the Duke and Duchess of Sussex and her father, together with the possibility of Thomas Markle giving evidence in support of The Mail on Sunday’s defence during the litigation.

Within its defence, The Mail on Sunday alleges that the Duchess of Sussex sought to influence the tone of media coverage relating to her through a friend. If The Mail on Sunday is successful in obtaining disclosure of the text messages or exchanges, this may open up her close circle of friends to further public scrutiny.

In the event that the proceedings do not settle, the matter will proceed to a final hearing. No hearing date has yet been set. If the case does go to trial it will obviously attract considerable interest from the public and lawyers.