Mail on Sunday loses appeal in Meghan Markle privacy case: The judgment explained

By Hayleigh Bosher for The Conversation

Associated Newspapers Limited (ANL) the publisher of the Daily Mail, the Mail on Sunday and MailOnline, has lost an appeal in its three-year legal battle against Meghan Markle, the Duchess of Sussex, over the Mail on Sunday’s publication of extracts from a letter written by the duchess to her father, Thomas Markle, in August 2018.

The duchess sued for copyright infringement and breach of privacy, arguing that the letter to her father had been “private and personal”.

High Court judge Mr Justice Warby issued a summary judgment in favour of the duchess in February 2021 which upheld her claim of breach of privacy and copyright infringement.

A summary judgment means that in this case the judge ruled there was no need to go to trial in order to reach a determination. This is because ANL’s defence had no real prospect of success.

ANL was given permission to appeal and brought fresh evidence to support its argument that the case should go to trial.

But the Court of Appeal has stated that, even in light of the new evidence, Warby had been correct in granting the summary judgment, and therefore that the Mail on Sunday was liable for copyright infringement and breach of privacy.

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Copyright infringement

Copyright protects things such as writings – including, as in this case, a letter. The copyright in the contents of the letter belongs to the person who wrote the letter – not the recipient.

To use someone’s copyright-protected letter without their permission is copyright infringement, unless an exception applies.

ANL argued that its use of the letter fell within a copyright exception, known as “fair dealing” for the purposes of reporting current events.

But for this exception to apply, certain criteria have to be met – including that the purpose of the use is for reporting current events and the amount taken was fair.

The summary judgment found that the Mail on Sunday’s printing of the letter had been for the purpose of reporting its contents – which was not a current event.

Warby also ruled that the amount of material from the letter published by the newspaper had been too great to be fair and was irrelevant and disproportionate to any legitimate reporting purpose.

Appealing his decision, ANL argued that Meghan’s father, Thomas Markle, wanted to publish the letter because he felt an article published in the US by People Magazine, featuring interviews with friends of the duchess portraying her as a “caring daughter” who had intended the letter as an “olive branch”, had been inaccurate. But the court ruled that the contents of the letter did not support this point, as it mostly reinforced the points made against him in the People Article.

The court also disagreed with ANL’s submission that the use of material from the letter was in the public interest.

The public interest defence can be used to stop copyright enforcement in the name of free speech – but it only applies in special circumstances.

It is a very rare for this defence to justify copyright infringement, particularly where a fair dealing defence also fails. So, it is unsurprising that the Mail on Sunday also failed on this defence.

So the Court of Appeal ruled that none of these defences applied and upheld Warby’s judgment that the Mail on Sunday had infringed Meghan Markle’s copyright in the contents of the letter when they published it.

Privacy

The duchess also sued ANL for misuse of private information. To make this claim, a claimant must demonstrate “a reasonable expectation of privacy”.

ANL argued that Meghan thought the letter might be leaked and therefore did not have a reasonable expectation of privacy in the contents of the letter.

To support this contention, it presented evidence from Jason Knauf, former communications secretary to the Sussexes, who claimed in a witness statement that the letter had been written with the expectation it might become public.

But court of appeal judges, Sir Geoffrey Vos, Dame Victoria Sharp and Lord Justice Bean, upheld Warby’s decision to grant summary judgment, and ruled that the duchess had a “reasonable expectation of privacy” in the contents of the letter.

“Those contents were personal, private and not matters of legitimate public interest,” Vos, the Master of the Rolls, said in a statement read aloud in court.

ANL also argued in its appeal that the duchess had shared the letter with Omid Scobie and Caroline Durand, authors of a book about the duke and duchess called Finding Freedom.

To make this point, ANL also relied on Knauf’s evidence, which disclosed that he had provided some information to the authors of the book with Meghan’s knowledge. This, the publisher argued, destroyed her reasonable expectation of privacy by putting the letter into the public domain.

But the court found that even if Meghan had shared a quote from the letter with the authors of the book, she still had a reasonable expectation of privacy in the detailed contents of the letter, so the Mail on Sunday had breached Meghan’s privacy rights by publishing its contents.

Having lost the case on appeal, the Mail on Sunday will have to do four things: 1) publish a correction and apology 2) pay damages (likely in the form of account of profits) 3) destroy copies of the letter in their possession 4) be subject to an injunction that stops them from infringing Meghan’s copyright and privacy rights in the future.

It is not yet known whether ANL will pursue a further appeal to the UK Supreme Court. In order to do this, they would need to seek permission from the Court of Appeal.

(The author is a Senior Lecturer in Intellectual Property Law, Brunel University London)