Why the Duchess of Sussex is justified in suing the “Mail on Sunday” – Stuart Gibson

17 11 2019

There’s nothing quite like a Royal Lawsuit to get the English media and for that matter English lawyers’ tails wagging. London Legal has been abuzz over the last week since word got out that the Duchess of Sussex had begun legal action against The Mail on Sunday over a claim that it unlawfully published a private handwritten letter of hers to her father Thomas Markle.

The letter was penned shortly after her marriage to Prince Harry in 2018. This was despite claims that an anonymous friend of the royal had quoted the letter during an interview with “People” magazine in February this year.

Just as interesting is the fact of a royal lawsuit against the media was (amongst  London legal circles) who had received the instructions to act. Of course in the UK there is no better client to have on your books that the Windsors.

Historically leading London firm Harbottle &  Lewis had held the royal reins and for good reason. They are a fine law firm especially in relation to Media and Privacy matters having represented the Royal family extremely well for several decades in matters of this nature. But word soon got out that (to quote a well known pop ditty) the Duchess had “gone her own way” (attribution Lindsay Buckingham & Fleetwood Mac) and chosen London competitor “Schillings” also a top performer but an expected choice.

And not only that. Word soon got out that the Duchess had also engaged her LA based PR Sunshine Sachs firm to assist her. Sunshine Sachs are the “go to” celebrity PR firm in LA and have, interestingly, represented everyone from Barbara Streisand to Michael Jackson to Harvey Weinstein.

Proceedings have been instituted in the Chancery Division of the High Court by Schillings. In it they describe the publication of the letter as “part of a campaign by this media group to publish false and deliberately derogatory stories about her, as well as her husband”. They allege defamation, misuse of private information, infringement of copyright and breach of the Data Protection Act 2018. Under English law data Protection Act claims are being used to add weigh to privacy claims (where the information is sensitive) and defamation claims (where the information is inaccurate or untrue).

Interestingly Harbottle & Lewis have been utilising DPA claims to good effect for some time since inception.

Unfortunately in Australia defamation litigants do not have the comfort of utilising either Commonwealth Privacy Act due to the blanket media exemption which operates (disappointingly) without any “public interest” test whatsoever. Nor could they successfully sue at this point in time for a tort of privacy in any Superior Court as the tort is not yet founded in those Courts. Despite that though a claim here would succeed based on both breach of copyright, alternatively breach of confidence, although only one need suffice.

The lawsuit is without doubt a stinging attack on the British tabloid media. And for good reason. The Letter was a private letter with no public interest whatsoever. For that reason they must surely succeed as they would had the letter been published in Australia for the causes of action outlined above.

And they are therefore entitled to basic standards of privacy and for reportage of them which is basically truthful. It would be fair to say the mail on Sunday does not have the best of track records for truthful reporting.

And , whilst the Sussexes like all citizens are supposed to have the protection of the British Independent Press Code  and the like  and of “responsible journalism” the fact is that these Codes and the bodies responsible for administering them are largely ineffective.  The Sussexes have the funds to sue and they ought to sue in this instance. Remember in this case the Sussexxes allege illegal ‘editing” of the letter, a matter denied by the Mail On Sunday.

In  their press statement the Sussexes have complained  about  the “painful” impact of the instrusive British media coverage of them. Whilst that may be the case they cannot expect even a successful lawsuit in this instance to remedy press intrusion per se. They are public figures and Im afraid there is no legal remedy for newspaper abuse-unless its illegal.

Whilst the lawsuit is a legitimate claim in privacy the Royals have been savage in their attack on the UK Press pack generally. This is a danger for them. They have adopted a broadbrushed approach to use the letter to attack the media generally, a strategy a bit like grabbing a tiger by the tail..that wont let go.

I am not sure this is the right course.

Time will tell.

Stuart Gibson is a partner in Mills Oakley, Melbourne


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22 11 2019
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