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.