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

8 11 2019

When Harry Met his Ancestors – Volume I finished tantalizingly as we saw Meghan Markle, Duchess of Sussex, following in the legal footsteps of her father-in-law, her sister-in-law, Queen Victoria ancestor to hubby Harry, and an anonymized non-royal, on her way to potential legal success in her privacy claim.

However, Volume II begins with suggestions that not all may be rosy in her litigation garden as the media tools-up to defend itself against her claim – and against the separate claim brought by her husband.

Arguments have been made in the media – and will no doubt be made in the litigation – that Meghan may herself be ultimately behind the exposure of the private letter in dispute, having communicated to a discreet number of friends the fact of having sent the letter to her father in the first place. Those friends in turn, it is argued, disclosed that fact and even the tone and some of the content of the letter to some in the media to dispel the myth that she is a cruel daughter unwilling to engage with her estranged Dad. But as this story twists and turns he in turn, it is said, spoke about and disclosed the letter to the media in the U.S. in order to put her billet-doux in what he says is its rightful context – not a “Dear Daddy olive branch” at all but a horse of a different colour.

The newspaper will undoubtedly use this weapon in their legal armory arguing that they were publishing in the public interest to correct the erroneous image of a misunderstood Meghan put out by some, and thus misleading the public. But even if this tortuous turn of events is true or partially true, that would not necessarily sink the Duchess’s legal ship. A claim in privacy invasion may be defended on the grounds that the disclosure contributes to a debate of general interest, and is thus in the public interest. But while the relationship between the Duchess and her father has been widely written about and might be considered public interest fayre, whether her feelings towards her father and her private communication of them to him amounts to a contribution to a debate of general interest and a matter for public consumption is something the court will have to deliberate.

Further still, even if those in Camp Duchess revealed the letter, its tone, or some of its content in order to right the wrong of an allegedly false picture of Meghan as some pantomime villain, that may not necessarily defeat her claim – because it may be considered to be her information to share as she chose fit. In 2005, the Canadian folk singer Loreena McKennitt successfully sued her former friend for privacy invasion when said friend included references in her book, My Life As A Friend to the singer’s grief at the death of her fiancé in a boating accident. The defendant had sought to defend on grounds including that she had a right to speak about her “shared experience” with the singer and what she had learnt about her as a result of that friendship; and that McKennitt herself had spoken publicly about the tragedy, which the singer explained that she had done in an effort to prevent other similar and unnecessary deaths.

The court, having none of the arguments by the defendant, wrapped up the legal position thus:  “if a person wishes to reveal publicly information about aspects of his or her relations with other people, which would attract the prima facie protection of privacy rights, any such revelation should be crafted, so far as possible, to protect the other person’s privacy. This is important particularly, of course, in the context of ‘kiss and tell’ stories.” [77]. How precisely that is done in practice, is another matter altogether. Here, neither the Duchess nor the Dad, could easily tell their own story about their relationship without infringing the rights of the other. The resultant mess that the disclosure of the letter has brought about, the private rights and wrongs, the confidential whys and wherefores, will all have to be unpicked by the court in what would promise to be a very public and widely reported proceeding.

The Duchess, the Princess and the copyright case

A distinct legal claim in the Duchess’s case is that in copyright infringement where there is also royal, legal precedent. Whether copyright has been infringed, is a qualitative not quantitative test, the court considering whether a substantial part of the copyright material has been reproduced without consent. Interestingly, in the Duchess’s case the newspaper may be damned if it argues substantial publication, and damned if it doesn’t. Were it to argue that it reproduced only part of the letter in its article it may add credence to the complaint by the Duke in his statement that the newspaper was deliberately selective in its quoting in order to fit its intended negative narrative. However, having reproduced the letter in its entirety without the copyright owner’s consent would leave little scope for any defense to a copyright claim.

Copyright precedent close to home for Prince Harry’s wife can be seen echoing in controversy decades ago over private letters belonging to Prince Harry’s mother. Princess Diana had written to Major James Hewitt whom she had later admitted, she had adored.  The letters – the actual, tangible paper – which were sent by her to him, became his property on his receipt. They were reportedly later stolen from him and ultimately when offered for sale to a newspaper, sent by the paper to the estate of the by then deceased Diana. The copyright in the letters however, as opposed to their physical manifestation, belonged to the author of the words, not the recipient of the paper on which they were written. In Diana’s case, the copyright belonged to her, and after her death, to her estate. In the case of the Duchess of Sussex, the copyright in her letter to her father – and thus the rights associated with the copyright, including the right to publish – will belong to her, even if the paper on which it was written, ended up in the hands of others.

Hacked off Harry

Hot on the heels of the Duchess of Sussex’s privacy claim came news that hubby Harry was taking on The Sun and the Daily Mirror for invasion of his own privacy – this time for phone-hacking. But while the two actions may be in quick succession, the phone hacking case has been issued far from quickly.

Shock and outrage rightly ensued at the news of the phone-hacking scandal in which the royal family was first enmeshed after publication by the now defunct News of the World of information about a strain on Prince William’s knee, said to be obtained via phone hacking.

The phone hacking scandal famously brought down the News of the World in 2011. It resulted in the lengthy Leveson Inquiry into press ethics. And in giving his evidence, the media mogul Rupert Murdoch quotably saying that this was his most humble day. After a telling off comes remorse and reparation. And indeed, a small slice of humble-pie was eaten by some caught in the privacy-invading act. Also ensuing post Leveson were the inevitable “that was then but this is now” protestations of a regretful media wishing to put the past behind them – and wishing to put a renewed public trust, as well as increased readership and revenue, ahead of them no doubt. Another motivation of humility will have been to avoid the specter of anything more robust than press self-regulation, which Lord Justice Leveson had described as the press effectively marking their own homework.

Thus far, the press has successfully argued that anything more than self-regulation would reduce them to Pravda-esque publications, doing the bidding of the Nanny state Government that would otherwise regulate them. This may be the reason that during and post Leveson, some elements of the press curbed their wilder excesses, which they have been seen to do at times of public outcry including that after the death of Princess Diana. Then, the media had appeared to mend their ways and cut the young, mourning Harry and William some slack, withdrawing the sharp focus of their lens and pens and allowing them to grow up in relative peace. That ceasefire – as the battle lines drawn by Meghan and Harry indicate – has long since ceased.

So why a claim now by the Duke, so many years on? The limitation period for such claims is six years from the date of the wrongdoing or from the date that the claimant knew or should have known about. It’s at least arguable that some instances about which the Duke might wish to complain are already long outside that limitation period – and some teetering on being time-barred. Unless of course, his claim is in respect of more recent incidents of privacy invasion…

The jury isn’t yet in, let alone out, on this matter, and no evidence has been established to indicate whether there was any historical hacking at all. But if a successful action by the Duke so many years post Leveson showed that improper activities had continued after the public dressing-down of the press, it would be a worrying indication that some had not done let alone marked their homework, indeed, had not even turned up at the classes given by Leveson and accordingly, had learnt no lessons at all.

It could only happen “over here”

As a nation, we English are quick to turn a withering eye on our American cousins, and lament that whatever evil we are condemning “could only happen over there”. Having recently qualified as a NY attorney, I have been asked how on earth – and why on earth – the royal couple would consider suing the press.

We are two countries divided by a common language – and a common media law it seems. The press of America have the privilege of protection of the First Amendment which puts its warm and protective arms around the representatives of the media, and encourages reporters to write and publish just about anything they darn-well please. Especially when it comes to public figures – as Prince Harry, Duke of Sussex, and Meghan Markle, former actress and now mother to seventh in line to the British throne – would be considered to be. The 1964 seminal case of New York Times v. Sullivan first addressed the difference between public figures and private individuals in media cases in the U.S. drawing a distinction between those who availed themselves of the public and the limelight, and those who had stayed beneath the media radar. Public figures in a defamation case for example, must attain a higher standard in showing falsity and malice on the part of the media defendant – a high hurdle.

If the press on the English side of the Pond would robustly defend the actions brought by the couple here, the American media would likely do so “with knobs on”. After all, the U.S. media can wrap themselves in the protective layer of the Constitution and luxuriate in a free press which others around the world may look upon with envious eyes.  The media laws of England and Wales have been criticized for being oppressive and draconian – largely it may be said, by a press whose wilder excesses the laws are there to prevent. There is no public interest in providing false information to the public, or in feeding the public unauthorized, private tittle-tattle which scarcely contributes to a debate at all, let alone a debate of general public interest. But if the British are indeed jealous of their American cousins, they may take some comfort in the fact that their press remains some of the most vibrant, satirical and inquisitive – and at the same time invasive and salacious – in the world.

Taking on the watchdog of society, a feral beast

Meghan Markle is an animal lover, and canine supporter; she is less of a friend of the British media, and no supporter of the bullying tabloid press. The U.S. and the U.K. media are united in a desire to inform the public of public interest information, and thereby fulfil their role as watchdog and bloodhound of society of which they should be proud. However, certain elements of the media on both sides of the Atlantic appear to feel the need to harass and savage public figures and private individuals alike, giving justification to their being – as English Prime Minister Tony Blair famously said on leaving Downing Street – a “feral best”.

In his statement defending his wife’s legal action Harry explained that the actions of the newspaper were just one incident of a ‘ruthless campaign’ of bullying, perpetuating lie after lie about his wife, and that he had long been a ‘silent witness to her private suffering’. At the same time however, the couple has sought not to estrange the media en masse, giving interviews as part of their own media campaign and in praising the role of responsible media to which Harry referred in his public statement defending his wife and announcing her litigation, as a “cornerstone of democracy“.

Setting the context for his and his wife’s litigation, Harry has said that he cannot stand back and do nothing, as this “would be contrary to everything we believe in.’ Standing back and doing nothing in the face of unpleasant press attention or unlawful media activity is something that many victims of press harassment – whether they are impecunious and cannot afford the cost of litigation, or wealthy but cannot afford the risk of fighting such a seemingly powerful force – feel is the only option.

Standing back is a stance that the royal family has taken historically. But pushing the litigation nuclear button has not been without precedent in the royal ranks. Perhaps as we face a brave new world, with a new generation of royals facing a new world of intrusive media capable of spreading truths and mistruths, information, misinformation and private data across the globe at the touch of a keyboard button, new rules will apply.

Uman Thurman’s Black Mamba does indeed, kill Bill at the conclusion of the two films, but not before her enemy Bill makes his peace with her allowing her start a new life with her daughter. Whether the media will make peace with the Duke and the Duchess before allowing them to walk off into the sunset with their son seems unlikely – but then again, few of us expected Tarantino’s masterpieces to end with a five point palm exploding heart technique, so perhaps there is hope yet.

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


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