Having read through the Defence which was recently filed by Associated Newspapers Ltd (“ANL”) in the case brought by Meghan Markle I was surprised to see it describe aspects of the Duchess of Sussex’s claim as ‘confused and incoherent’ (para 17) and other parts as ‘irrelevant’.
In view of the contents of the Defence, this struck me as a bit rich. Mind you, it is the only thing that is rich, in what is otherwise a veritable famine of epic proportions. I’m afraid that those seeking nourishing legal reasoning will go hungry.
Then again, this impoverished approach is consistent with ANL’s closet socialist tendencies. (Who knew?) For how else are to explain the revulsion at wealth and social privilege disclosed by the Defence (para 4)). The Duchess, they remind us, is ‘living in a palace (Kensington Palace)’ where she is ‘served by staff’ and enjoys [strong word] ‘many foreign trips each year’: ‘By way of [pointless] example… she and Prince Harry flew to Ibiza by private jet, a luxury available to those of extreme wealth or elite connections.’
It is testament to their strong constitutions that they can stomach investment bankers-cum-MPs, like Jacob Rees-Mogg, whom, you should know, ANL only supports after much soul-searching… Nevertheless, the Duchess’s wealth and privilege is clearly so unappetising that they cannot bear to mention it again – say, as part of some sort of legal argument.
The Duchess’s claim is well-known (because the press has not stopped talking about it). Nevertheless, the gist of it is this: she objects to the Mail on Sunday and Mail Online, across several articles, printing substantial extracts from a private letter she wrote to her father, in which she expressed her grief and mental anguish at his ongoing ill-advised interactions with the press which, rather than generating support for him, have done nothing more than embarrass the Markles on a global scale.
Her claim, then, is in misuse of private information (MOPI), copyright, and GDPR. Even before filing its defence, ANL had a daunting prospect ahead of it. Now, having done so, the position seems positively insurmountable.
The defence says that the Duchess’s claim must be dismissed. As to MOPI, she has no reasonable expectation of privacy because letters can only be treated as private if there is some express, prior agreement between the parties to treat the contents as such. Moreover, the contents itself contains nothing that could be called private. Even if it was, though, the public interest in knowing the contents is ‘weighty’, ‘huge and legitimate’ and ‘enormous’.
The GDPR cannot apply because ‘the personal data… did not convey any personal… information’ (para 23.2.1) and even if it did, it would be unreasonable to expect journalists to have to comply with such mundane matters as fairness. Finally, the claim in copyright is unsustainable because copyright laws cannot apply to the mere description of historic and current events.
Thin Soup.
Examining each claim in detail, we find little of substance. ANL is convinced, though, that the strength of the free speech claim will be found weightier than the strength of the privacy claim when the ultimate balancing act is conducted – so convinced that it does not bother to say how.
The claimant, it says, has no reasonable expectation of privacy in the letter, for several reasons, but beginning with this so-called (unspecified) ‘general principle’ that the label privacy only attaches to correspondence where the parties agree that it is private or otherwise where ‘special circumstances’ exist. Thus, they say, ‘a recipient of a letter is not obliged to keep its existence or contents private, unless there are special circumstances, such as a mutual understanding between sender and recipient that the contents of a letter should be kept private’ (para 13.2). Of course, those of us familiar with privacy law know that this is not how the REOP test works.
Regardless of this ‘general principle’, though, ANL says that there is nothing private about the letter. The letter, it says, ‘was not a deeply personal letter nor did it contain sensitive personal information about the Claimant’ (para 16.1). This is the same newspaper that wrote, on 11 February 2019, that the letter was ‘deeply personal handwritten note’ which ‘lays bare the full extent of the devastating falling out between the pair.’
Or maybe this is the sort of deeply personal letter containing sensitive information that is not a deeply personal letter containing sensitive information – in the same way that, for the GDPR claim, the ‘personal data’ used by ANL was not ‘personal data’. That sort of thing.
Should this sort of gaslighting be unsuccessful though, ANL has a fallback. The Duchess never intended for the letter to be kept private. This is proved by features of the letter itself, including but not limited to the following:
- She ‘took great care over its presentation. The Letter appears to have been being [sic] immaculately copied out by the Claimant in her own elaborate handwriting from a previous draft’ (emphasis added). How does ANL know there was a draft? Because ‘there are no crossings-out or amendments as there usually area with a spontaneous draft.’
- ‘The tone and contents of the Letter. The Letter is written to put the Claimant and her previous conduct in the best possible light. It makes multiple accusations against Mr Markle and multiple self-congratulatory remarks about the Claimant…in a way that strongly suggests the Claimant wanted or expected third parties to read it’ (emphasis added). Just FYI, ANL, if someone sues you for printing their private correspondence you can safely rule out the idea of them wanting you to publish it…
- ‘The Claimant KEPT A COPY OF THE LETTER.’ (emphasis added). ‘It is to be inferred she did so in order that she could use it herself, including by disclosing its contents.’
This is grim stuff.
Of course, should the impossible happen and the judge does not accept that these perfectly reasonable claims have any legal force (unthinkable), then ANL will argue that the public interest in knowing the contents was so ‘weighty’ (para 15.15), ‘huge and legitimate’ (4), ‘enormous’ (6) or any other Donald Trump approved adjective they can think of, that the interference with privacy was justified.
The public interest defence and copyright will be considered in Part 2 of this post.
Dr Paul Wragg, Associate Professor of Law, University of Leeds, Associate Fellow of the Honourable Society of the Inner Temple.
Hi Paul, thanks for this. Would you upload copies of both the Particulars of Claim and the Defence, please. The press have unhelpfully – but typically – only selectively quoted from them. Many thanks.
Thank you Professor Wragg. As an American Black woman who lived in London a few years ago, I am rooting for HRH the Duchess of Sussex to win this case. Hopefully it will send a message once this case is over.
You’re welcome, Olivia. I hope so too.
This is unsavoury at best And should never have come to the WORLDS Attention. Far from Putting two middle aged Royals in a good light. It is distasteful an Old sick heartbroken man Who did so much for his daughter and stood by her always Only to be Ghosted when the good times happened for at 32 years old Years of looking/keeping after her when NO Acting positions happened for her and this has made him lash out. And she likes to seen as kind gentle caring person And takes great pain in trying to present this to the public Now shows she will go to any lengths to exororate herself even making her Old Father fly to England to defend why he did this [subpoenaed] Better it had been left to die its death on there departure from there Royal Duties and the British Isles for HOLLYWOOD Nothing says we want to live a private happy life Like dragging your Father through the mud
You really do not have the range for this conversation, this is not the daily mail comments pls.
Mr. Wragg it is unfortunate that you let your bias do much of the thinking when you wrote this article. I wonder what you must think after the ruling today? It’s interesting to read your opinions regarding ANL’s response in light of the judge’s ruling today. It appears that you and Miss Markle May come out in the wrong side of this one.
Thank you very much for the great 2-part post. I learned a lot about the case from you. It’s unfortunately that Warby struck off allegations of all 3 wrongdoings. The good thing is, at least Warby allows the rebuttal to ‘setting the record straight’ to be re-pleaded. I think if Sherborne just re-file against publisher’s intention without raising “stirring up” allegation, he would be able to show the negative press Mail published against Thomas leading up to printing the letter. Using those additional articles in this context should not require investigation and, thus, no disproportionate cost to the case. Is this amature view correct?
I think Meghan has a strong case. The U.K. and the gossip rags have a hate campaign going on, it started when Meghan started dating H. Those rags have never printed not one positive article on her. The letter and all contents belong to Meghan. Mr Markle (sperm donor) new he was hurting his daughter, when he sold the letter. He is only after money no matter how he gets it. If the judge rules against her, he is basically stating the rags can print anything and get by with it. They have printed horrible things about her including while she was pregnant. It’s like they was trying to cause a miscarriage. In my eyes the rags are bullies. I feel sry for their kids they are being taught it is ok to bully others. The gossip rags have bullied Meghan to try to make Kate and Will look good. To prop them up. It will never happen it doesn’t matter what they print. Harry & Meghan are good people and people love them. I personally think the people printing that garbage is a bully and racist. Harry is old enough to know what he wants. In the end God will always have H&M’s back. God will also give the haters, racist and bullies what they deserve. God says treat others the way you want to be treated. Part of the problem is they are intimidated by Meghan she is a beautiful, intelligent and confident woman. She went into that family with her own money. The U.K. act like they want their women to stay quite and obey them. They wanted H&M gone, ok they left. Now is the time for all the lying gossip to stop. No more be printing on them anymore. God Bless Meghan, Harry & Archie. #Sussex stan will always have their back.
There are really vile individuals working in Australia media, as well, and one reporter called Daniela Elser actually seemed to take pleasure in Meghan being hurt during her last trimester. Reporting on Tattler’s character assassination piece, Elser began with “a British institution launched a savage attack designed to hit her where it hurts” and ended with “Meghan is not going to be able to spin or downplay or even ignore this story, as has been her M.O. since she first unrolled her yoga mat in Kensington Palace. Now might be a good time for her to go into labour.” Appearing as an afterthought, she softened it by adding that news of a royal baby would make people forget the nasty reports. It is very sick to derive glee from an innocent pregnant woman being harmed.