When Harry met his ancestors, on the way to the law courts: Volume I – Amber Melville-Brown

7 11 2019

Meghan Markle, Duchess of Sussex, is suing the newspapers. And so is her husband, Prince Harry, Duke of Sussex. As a couple, they are united it seems in a distaste for the British tabloid media, elements of which they accuse of carrying on a vindictive and bullying campaign against them.

There is a lot to be said for calling the press to account when they behave irresponsibly; and there is a lot to be said about it. Taking a leaf out of Quentin Tarantino’s Kill Bill book therefore, herewith “When Harry Met his Ancestors: Volume I”, to be swiftly followed by the next exciting episode … “When Harry Met his Ancestors: Volume II”.

Meghan’s action was reported first – an action against the Mail on Sunday for privacy invasion and breach of her data and intellectual property rights arising out of the unauthorized publication of her private letter to her father. Hard on those litigation heels, his action – against the Mirror and The Sun for privacy over alleged phone hacking. But then within a whisker of that, television interviews during their tour of Africa in which they appear to harness elements of the mistrusted media machine to tell their own story.

Engaging with the media – either as friend or foe – is an unexpected game for the royals to play. It does however, have some royal roots. Most will recall the BBC Panorama interview given by Princess Diana in which the People’s Princess publicly and explosively noted concerning the breakup of her marriage to Prince Charles, “Well, there were three of us in this marriage…” Well, there are three of us in any media story: the subject of the expose, the media organisation which wishes to do the exposing, and the public who, to some extent or another, wishes to see the exposure.

Celebrities and stars of the screen, stage and stadium are not necessarily backwards in coming forward when their reputations are falsely traduced, or their privacy unfairly invaded. And royals are certainly celebrities, being persons who are well known. In his book On Royalty, the British journalist and author Jeremy Paxman reported that HRH the Prince of Wales himself had once confided about the royal family, “I think we’re a soap opera.” Resort to the courts may not have been as much of a pursuit to our royal family as it has been of their soap star comrades, and much less so engaging in media campaigns. Rather, they have traditionally refrained from sullying their hands with legal action or drawing more negative attention by having their laundry – dirty or otherwise – washed in the public arena of open court.  But while the royal family has not rushed to steps of the English Royal Courts of Justice to litigate when their regal rights have been infringed, legal action is not without precedent. Looking back at some of the regal legal complaints over the years indicates that there might be some helpful history out there to support the actions brought by the Duke and Duchess of Sussex.

Take it away, Prince Charles

In 2006, the Duke’s father Prince Charles controversially but successfully sued the Mail on Sunday over the unauthorized publication of extracts from his diaries produced during the handover from the United Kingdom to China, of Hong Kong. His diary entitled The Great Chinese Takeaway – in which he referred to the Chinese dignitaries as “appalling old waxworks” – had along with other diaries, been given to fewer than 100 people in his staff, friends and contacts “in confidence”. This dynamite diary however, was published by one recipient in a book which was then serialized in the Mail on Sunday.

Under English law, the courts can restrain the publication of material which is published in breach of confidence – that is where it has been imparted in circumstances imposing an obligation of confidence, which obligation is then disregarded; or where it is private – that is where the subject has a reasonable expectation of privacy in respect of it. While there are no set definitions of what is private or confidential, domestic English and European case law has established that it can include the notable categories of health, medical, sexual and relationship information, while Article 8 of the European Convention on Human Rights – incorporated into English law through the Human Rights Act – guarantees the right to respect for one’s private life, home and – notably in the case of Prince Charles and the Duchess of Sussex in her litigation  – correspondence.

The media rarely takes claims of such potential import lying down. Regularly set against the right to privacy in the red corner, is the right to free speech in the blue corner. And the media comes out fighting. Defending themselves in the Prince Charles case, the defendant argued that publishing the diaries was justified in showing him as improperly meddling in political affairs. But its attempt at a defense fell on deaf judicial ears. The diaries were private not public, political offerings the court found; they were given to their few recipients under the auspices of confidence, and any argument that a public interest justified the disregard of this confidential relationship and the confidential circumstances under which the limited recipients were invited to share in the private diaries, was without force. According to Mr. Justice Blackburne, “the contribution that the … journal makes to any public debate … is at best minimal” ([132]).

Success for Prince Charles meant that he was able to keep the remainder of his unpublished diaries, confidential – and avoid the unattractive proposition of having to appear in court to give evidence. Whether the Duchess of Sussex will have such a similar success – and thereby avoid the probing that cross-examination will necessarily entail – remains to be seen.

Closer gets too close to the Duchess of Cambridge

While there are robust rumours of a feud between the two Duchesses, Catherine and Meghan are seemingly sisters in arms when it comes to claims in privacy invasion. Before Meghan, Kate had resorted to legal action against the French magazine Closer which had it seemed got too close to the Duchess of Cambridge, with a long-lens at least. The magazine evidenced its naked ambition for royal exposure by publishing images, without her consent, of her topless, taken with a long lens and onto private property while she was on holiday.

Each one of us may have a different view of what should be private, and what we can live with being exposed. Privacy litigation serves to pronounce the boundaries of what the courts will find acceptable or not. The naked breasts of one duchess and the naked emotions of another may appear very different subject matter, but for both – before specific facts come into play – the starting point should be that they are worthy and capable of privacy protection. The court did not find a public interest or public domain justification for the exposure of the former; up for consideration is whether one can be found for the latter.

Princess Caroline of Monaco v. Caroline, Wife and Mother

The Duchess of Sussex’s current case brings once again into sharp focus the boundary between private and public, between professional personas and private individuals. In the case brought by Princess Caroline of Monaco in 2004 the European Court of Human Rights drew a distinction between the activities of “Princess Caroline the princess”, fulfilling her formal official duties, and “Caroline the woman”, fulfilling a private role as individual, mother, wife. Photographs of her out and about with her children, skiing or shopping did not, the court said, contribute to a debate of general interest, and did not amount to public interest justified fodder for the press to regurgitate to the public without the subject’s consent.

In England, the newspaper industry is self-regulated, and according to the industry’s self-regulator, the Independent Press Standards Organization (IPSO), “public interest” includes, but is not confined to detecting or exposing crime or serious impropriety, protecting the public from being misled, and there is a public interest in freedom of expression itself.  When it comes to Meghan Markle, there may be plenty of story lines about this royal soap-opera family member to keep the press and the public thirsty for more – divorced; American; African American; daughter of a broken marriage; having the audacity of being bold, beautiful and black. But that does not necessarily make aspects of her private life, her home or her correspondence, fit for public consumption.   Simply because her actions and attributes are enough to make the public interested in her, does not necessarily mean that the there is a public interest in the publication of her private letters. In this litigation, we are likely to see consideration of whether the letters of controversy were penned not by “Meghan the Duchess”, in which case greater weight may be given to a public interest defence, but by “Meghan the daughter”, garnering a greater possibility of privacy protection.

Come over and see my etchings

Yet more precedent still sits tantalizing behind the current privacy cases, from centuries ago. The Duke of Sussex’s ancestor Prince Albert started a royal privacy ball rolling in 1849, bringing an action to restrain the publication of copies of his private etchings of his wife Queen Victoria, their home, their pets and other intimate instances of their private life. An enterprising entrepreneur to whom the etchings had been entrusted to make copies for the royal couple’s friends, had made a few extra copies for himself and which he intended to show at an exhibition.

But no cigar for the entrepreneur. He was hoist by his own publicity-seeking petard when advertisements for the exhibition caught Albert’s eye and led him to reach for his lawyer, successfully restraining the dissemination of the accompanying brochure, and the proposed exhibit itself.

PJS and bursting the privacy injunction bubble

There is precedent of a non-royal kind to assist the Duchess’s claim in misuse of private information in the widely-publicised case of PJS from 2016. This case was notable in the upholding of a privacy injunction by the Supreme Court of the United Kingdom notwithstanding rumor around the identity of the complaining parties had been widely published outside the Supreme Court’s jurisdiction, including in Scotland and America.

Confidential information can lose its protectable confidential status when sufficiently placed into the public domain. Before that, it is possible in England and Wales to obtain injunctive relief.  Of course, privacy injunctions have always been anathema to the media on both sides of the Pond. The British tabloids in particular have vilified them, and have done a good job in seeking to get British readers on side in believing that they are being denied important public interest information; it is quite possible that in in fact, what they are being “denied” is baseless gossip and tittle-tattle for which there was no public interest justification.

In the U.K. privacy injunctions are much less frequent than once they were but they are still proper and proportionate remedies in some circumstances. But this notwithstanding, the English courts will not grant relief where to do so would effectively be requiring them to play the role of King Canute. This was evidenced by the failed attempt to maintain an injunction by the former FIA chief Max Mosley, after a video clip of the private information had been viewed on the defendant newspaper’s website more than a million times.

That said, in a misuse of private information case the privacy bubble may not necessarily be burst simply because information, or some of it, has been put into the public domain. The court accepted in PJS that harm can continue to be caused by each new privacy infringement and thus, that relief may still be granted. According to the Supreme Court in PJS, “a claim for misuse of private information can and often will survive when information is in the public domain.” In other words, if the privacy cat is to some extent out of the bag by reason that it has in whole or in part been placed into the public domain, it is not necessarily impossible for the court to shove the privacy kitty-cat back in.

Kill Bill Volume I ends with Black Mamba looking undefeatable, as she defeats a restaurant full of foe and coolly scalps a talented and respected enemy in an icy garden. But victory is not a foregone conclusion as the credits roll, because Tarantino’s baddies are not about to take defeat lying down. Similarly unlikely are the media to take the Duke and Duchess’s legal complaint without a fight, as we see in “When Harry met his Ancestors – Volume II”.

Amber Melville-Brown is Global Head of Media and Reputation at international law firm Withers Worldwide


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7 11 2019
David Potts

Amber as is usual writes a witty , erudite blog showing that Harry is not the first Royal to be concerned about protecting his privacy . I look forward to volume 2
cheers
David Potts
Barrister , Toronto

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