top of page
  • Writer's pictureDurham Pro Bono Blog

Meghan vs The Mail: the legal implications

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Sophie Garnett

Section Editor for Technology & Media


In February this year, the judge ruled on Meghan Markle’s case against the Associated Press, publishers of the Mail on Sunday. The ruling stated that her privacy and copyright had been infringed by the publishing of a letter in 2019 written by Markle in 2018 to her father after he failed to attend her wedding [1]. This comes as a great win for Meghan having previously lost her case against The Mail on Sunday in 2020 after she claimed they ‘acted dishonestly’ by publishing a letter she had again written to her father, Thomas Markle [2].


This time around however Markle was victorious after Lord Justice Warby published a summary judgement stating that “It was, in short, a personal and private letter […] The claimant had a reasonable expectation that the contents of the letter would remain private. The Mail articles interfered with that reasonable expectation.” [3], going on to say that Associated Press had breached both Meghan’s privacy and property claims over the letter [4]. Markle stated that the court had delivered a “comprehensive win on both privacy and copyright” elements of the lawsuit, Judge Warnby, however, stating that the Data Protection element of the suit should go to trial [5].


Though this is a clear win for Meghan, the ruling was met with backlash from the Associated Press as well as a plethora of commentators who were concerned about the lack of a trial as the judgement came in the form of a summary judgement meaning the judge did not see it fit for either side to present evidence in court. A spokesperson for Associated Newspapers said: “We are very surprised by today’s summary judgment and disappointed at being denied the chance to have all the evidence heard and tested in open court at a full trial. We are carefully considering the judgment’s contents and will decide in due course whether to lodge an appeal.” [6].


However in saying this, Judge Warby did address this in his judgement, stating that an electronic draft of the letter "would inevitably be held to be the product of intellectual creativity sufficient to render it original in the relevant sense and to confer copyright on its author or authors". , the Mail on Sunday also having "copied a large and important proportion of the work's original literary content". [8] which thus led to the copyright ruling.


Nevertheless, many critics have viewed this ruling as setting a dangerous precedent within media law which they fear will interfere with the freedom of expression [9]. According to the Mail on Sunday’s publishers, Meghan expected or even intended the contents of her letter to enter the public domain. And if the duchess did have a right to privacy, it was ‘slight’ and outweighed by the newspaper’s right to freedom of expression [10].


The ruling calls into question the legitimacy of other news outlets publishing ‘self-evidently private’ correspondence such as emails, texts and phone messages and has thus set a worryingly vague precedent about how far the press is allowed to go. The questions arose mainly around whether the writer of a letter that is self-evidently private and sensitive has the right to decide whether, when and how to publish its contents [11].


The precedent set from this ruling has worried press outlets about the future legitimacy of using ‘leaked’ information in news stories, leaving many worried they will be easy targets for lawsuits [12]. Yet is this a reasonable fear or is media law robust enough to withstand an influx of copyright and privacy claims?


Copyright law in the UK states that any copyright claim can be brought against a publisher if the work ‘has a striking similarity to the copyrighted work’ [13], thus suggesting that media outlets must be careful not to publish direct letters as the Mail on Sunday did as they would then be liable in a copyright suit. This is relatively common knowledge in media however and most news outlets refrain from publishing private documents, instead of leaking the relevant information from the acquired document [14].


Privacy claims however may hold more weight after this judgement; People who live in European countries signed up to the European Convention on Human Rights have, among others, a right to privacy. This means that a number of aspects of their lives are not to be revealed unless it can be shown it is in the public interest to do so, including information about familial relationships [15]. Meghan’s win demonstrated the extent to which privacy law extends, cases in the future revealing intimate details about personal relationships thus being more likely to win in court.


Media law can be difficult to rule on due to the complex boundaries between personal and public information when it comes to celebrities. What Meghan’s victory sets however is some boundaries within copyright law especially in addition to bringing up questions about where to draw the line in privacy matters.



 

[1] Davies, Caroline, Meghan wins privacy case against Mail on Sunday (The Guardian, 2021), available at: https://www.theguardian.com/uk-news/2021/feb/11/meghan-markle-father-duchess-sussex-mail-on-sunday-wins

[2] Landler, Mark, Setback for Harry and Meghan in Legal Battle With U.K. Tabloids ( New York Times, 2020), available at: https://www.nytimes.com/2020/05/01/world/europe/meghan-markle-lawsuit.html

[3] Quinn, Ben, Could Meghan ruling stop the media using leaked documents? (The Guardian, 2021), available at: https://www.theguardian.com/uk-news/2021/feb/11/could-meghan-ruling-stop-the-media-using-leaked-documents

[4] Croft, Jane, Meghan Markle wins UK privacy lawsuit (The Financial Times, 2021), available at: https://www.ft.com/content/939792ac-07b5-44fa-841c-c1825ac20860

[5] Shields, Bevan, ‘The damage runs deep’: Meghan Markle hits out after winning case against British newspaper (The Sydney Morning Herald, 2021), available at: https://www.smh.com.au/world/europe/the-damage-runs-deep-meghan-markle-hits-out-after-winning-case-against-british-newspaper-20210212-p571sy.html

[6] Davies (2021) (n 1)

[7] Croft (2021) (n 4)

[8] Hardinges, Nick, Meghan Markle wins privacy claim against Mail on Sunday over 'private' letter to father (LBC, 2021), available at: https://www.lbc.co.uk/news/meghan-wins-high-court-privacy-claim-against-mail-on-sunday-thomas-markle/

[9] Rozenberg, Joshua, Meghan and the Mail (The Law Society Gazette, 2021), available at: https://www.lawgazette.co.uk/commentary-and-opinion/meghan-and-the-mail/5107199.article

[10] ibid

[11] ibid

[12] Ship, Chris, What next for the Sussexes following Meghan’s win over the Mail on Sunday? (itv News, 2021), available at: https://www.itv.com/news/2021-02-12/what-next-for-the-sussexes-following-meghans-win-over-the-mail-on-sunday

[13] Digital Media Law Project, Copyright Infringement (2021), available at: https://www.dmlp.org/legal-guide/copyright-infringement

[14] Abbott, Matt, Media Law Guidance (Independent Community News Network, 1970), available at: https://www.communityjournalism.co.uk/media-law-guidance/

[15] ibid

17 views0 comments

Recent Posts

See All

The controversy surrounding facial recognition

By Holly Downes Facial recognition is a technology that has maximised our safety and protection, served justice by solving crime cases, and has made identification safe through authentication, yet the

Comments


bottom of page