Anatomy of an appeal: HRH Duchess of Sussex v Associated Newspapers

Associated Newspapers (known for publishing The Daily Mail, The Mail on Sunday and Mail Online in the UK), lost its appeal against a High Court ruling which found that it had misused private information belonging to the Duchess of Sussex, Meghan Markle, and infringed her copyright. In this article, we summarise why Associated Newspapers lost at the Court of Appeal and provide key takeaways from this case.

The Facts

Thanks to extensive press coverage, the facts are quite well-known:

• In May 2018, Meghan Markle, former US actress and star of legal drama “Suits”, married Prince Harry. The union sparked keen tabloid interest, in the UK and internationally.

• In August 2018, an apparent breakdown in the relationship between the Duchess and various family members prompted her to write a letter to her father. In the letter, the Duchess discussed their difficult relationship and her unhappiness with Mr Markle’s alleged propensity to sell stories about her to the British press.

• In February 2019, Mr Markle provided a copy of the letter to Associated Newspapers. Mr Markle said that he had done so because of an article published by People Magazine in the USA which misrepresented the correspondence from his daughter as an “olive branch”, when this was not the case.

• Associated Newspapers, presumably viewing the letter as a major journalist scoop, proceeded to publish several extensive extracts from the letter in five articles appearing in the Mail on Sunday and Mail Online throughout February 2019, but subsequently found itself subject to a high profile lawsuit initiated against it by the Duchess.

The Claim

The Duchess claimed that Associated Newspapers had:

1. Misused her private information

“Private information” is information over which a party has a reasonable expectation of privacy. Use of such information will be “misuse” if that party’s right to privacy outweighs the using third party’s right to freedom of expression under the Human Rights Act 1998.

2. Breached her copyright in the letter

Copyright subsisted in the Duchess’ letter as an original literary work. The Duchess claimed that, as author of the letter, she owned the copyright and that this had been infringed by The Mail on Sunday articles because they had reproduced the whole or a substantial part of her copyrighted work, without her consent.

The High Court

In February 2021, the High Court granted the Duchess “summary judgment” in respect of her privacy claim and the majority of her copyright claim. A Court will only grant summary judgment against a defendant (in this case Associated Newspapers) if it considers that it has no reasonable prospect of successfully defending a claim. Associated Newspapers appealed.

The Court of Appeal

In December 2021, the appeal was dismissed for the following reasons:

• Associated Newspapers attempted to rely on new evidence (including from a former member of the Kensington Palace Communications Team) which it claimed:
  • undermined the Duchess’ reasonable expectation of privacy in the letter; and
  • proved that the letter was not private because the letter had been briefed, with the Duchess’ knowledge or consent, to authors of her and Prince Harry’s biography “Finding Freedom”, and to People Magazine.

However, the key issue was whether the Duchess had put detailed contents of the letter into the public domain before The Mail on Sunday articles were published. The Court found that she had not (regardless of the fact that she realised and was possibly ambivalent to the prospect that it might be leaked). Therefore, the letter was private at the time it was published by The Mail on Sunday.

• Associated Newspapers argued (in respect of both the privacy and copyright case) that its use of the Duchess’ letter was in the public interest because it was necessary and proportionate to address inaccuracies within the People Magazine article and to provide Mr Markle with a public right of reply. However, the Court held instead that the purpose of The Mail on Sunday articles was to expose the full content of the letter, in an explosive public splash designed to have maximum sensationalist impact. While it may have been necessary and proportionate to reproduce some aspects of the letter to correct the record, it was not necessary or proportionate to use almost the entire letter to do so.

• The right to freedom of expression enjoyed by Mr Markle and Associated Newspapers did not outweigh the Duchess’ right to privacy or copyright because The Mail on Sunday articles were too intrusive and the reproduction of extensive extracts from the Duchess’ letter could not be justified.

• In respect of the copyright claim, Associated Newspapers attempted to argue that its publications fell within a copyright exception related to reporting on current events. The Court disagreed – The Mail on Sunday articles instead reported on actual contents of the Duchess’ letter. Further, the use made of the letter could not be “fair” because it was disproportionate to any legitimate reporting purpose.

Takeaways

It is fair to say that the case has attracted significant international attention primarily as a result of the involvement of two (then) Royals.

However, there are salient commercial and legal takeaways from the High Court and Court of Appeal rulings:

• Associated Newspapers initially tried to argue that the letter could not be private because the Duchess had written it intending or knowing that it would be leaked and in attempt to leverage its content to improve her public image (although this point was later dropped). While it may seem counter intuitive, a claimant’s intention to publish information at a future date (or even their indifference at it being published) does not deprive them from their reasonable expectation of privacy in respect of that information.
  
• Similarly, a public figure does not waive their right to privacy by previously being willing to publicise certain details about their own private life. A fundamental principle underlying the right to privacy is that an individual should be able to exercise autonomy and control over information about their personal life. This is an important distinction.

• On the other hand, it is suggested that if an individual themselves plays a part in invading their own privacy, this may have a bearing on damages. It is of note in this case that Associated Newspapers was only ordered to pay the Duchess a nominal sum of £1 in damages for her privacy claim.

• Publishing private information to correct facts or set the record straight must be proportionate. The Mail on Sunday potentially could have escaped liability had it published only relevant and short snippets of the letter.

• Copyright can often be used as a “gateway” for protecting private or confidential information.

• While reporting current events can be a defence to copyright infringement, this is a highly focussed test which involves a close analysis of the actual purpose and nature of the publication. In addition, the use made of the work must still be “fair”. Assessing fairness is a multifaceted test that takes into account factors such as the extent of the use, the use made, and whether such use is proportionate.

Case

HRH Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810