The tension between the tabloids and those in the public eye reached a crescendo in October with the legal actions brought by the Duke and Duchess of Sussex. The Duchess issued a claim against the publishers of The Mail on Sunday for misuse of private information, infringement of copyright and breach of the Data Protection Act 2018 in relation to the publication (in February 2019) of what she said was an edited version of a handwritten private letter she had sent to her estranged father.
It then emerged that Prince Harry had brought his own separate claims against the publishers of The Sun and the Daily Mirror newspapers for alleged phone hacking—the illegal interception of voicemail messages. Prince Harry also released an impassioned statement about the treatment of his wife by the tabloid press which included the lament that: ‘I lost my mother and now I watch my wife falling victim to the same powerful forces.’ He also wrote: ‘There comes a point when the only thing to do is to stand up to this behaviour because it destroys people and destroys lives.’
Perhaps not surprisingly this fighting talk met with little sympathy in the media, with even the broadsheets chiming in support of their tabloid brethren. The Guardian opined: ‘The Duke and Duchess of Sussex have had a rough time with the media—but to many people it’s a bit rich to complain about their treatment.’ This seems a curious response to the alleged invasions of privacy which sparked the legal actions. At what level of fame and fortune are you just expected to put up with unlawful media activity?
The Mail on Sunday is defending Meghan Markle’s action and seems to be relying on the public interest defence which got such short shrift in the Prince Charles case against the same newspaper back in 2006. Media commentators are already rubbing their hands and suggesting that this could be the privacy case of the century. Move aside Max Mosley. It seems the royal family are between a rock and a hard place in relation to the media, encountering nothing but grief whether they confront the media like Harry and Meghan or, worse still, engage with it like Prince Andrew. The Queen’s ‘silence is golden’ policy looks more and more like the safest approach.
Leaks from closed social media group In a plot which seemed worthy of an old ‘Footballer’s Wives meets Agatha Christie’ storyline, Coleen Rooney (wife of footballer Wayne Rooney) dramatically accused Rebekah Vardy (wife of footballer Jamie Vardy) of leaking private information about her to The Sun (or at least alleged that it emanated from Mrs Vardy’s Instagram account). While providing the nation with a brief respite from Brexit overload as one of the most searched for items on Google that week, the incident opened another window on how private stories may enter the public domain. Coleen Rooney (in order to source the culprit of repeated leaks about her family’s activities to the tabloids) blocked everyone save Mrs Vardy from viewing her private Instagram account, then placed various fabricated stories on the account to see if they ended up in The Sun, which they duly did. ‘WAGatha Christie’, as Coleen soon became known, then stepped forward and cannily announced that someone using Rebekah Vardy’s Instagram account was the source of all the leaks. Vardy tearfully denied responsibility.
Despite the central role played by the wrongful disclosure of private information in this saga (and indeed the publication of allegations, hotly denied), as far as one is aware, there has not been any litigation so far.
Ultimately, these examples illustrate the ongoing battle that the media wages to persuade the courts that stories which titillate the public should also be protected as stories of genuine public interest. One may sympathise with their commercial imperative in an age when newspaper profits are collapsing at an alarming rate. The pressure is on to lure readers (and advertisers) in, particularly online. However, the human cost to those whose private lives have to feed this monster can be profound. And of course the central players in the stories dealt with in this article are celebrities who generally have a public platform to respond to the publications which have caused them such distress. The vast majority of victims of press intrusion do not enjoy such an advantage and for them the privacy laws and access to the court system are crucial safeguards.
As the internet tech giants have long realised, and as governments and society are now belatedly but rapidly appreciating, personal data is the most valuable commodity of all. One suspects that the legislative provisions which will be afforded to protect private information will only increase in the future.
In almost every privacy case, prevention is better than cure. A successful claim for damages after the event is often a largely pyrrhic victory since the damage caused by publication has already occurred and is very likely to outweigh any compensation that may be awarded. And the reality is that the court of public opinion may tut in disapproval about the conduct of the media but human nature is such that they will all be reading the next story that comes along, and spreading the damage and intrusion by sharing it on social media.
Jeremy Clarke-Williams, partner, and Nilly Tabatabai, trainee solicitor, Penningtons Manches Cooper
This article was first published in New Law Journal on 13/12/19 and is reproduced with kind permission
Part One of this post was published on Inforrm on 13 December 2019.