The public interest defence advanced by Associated Newspapers Limited (“ANL”) comes in three different flavours, none more satisfying than the previous ones.
The first is fairly vanilla and stems from the fact of the Duchess’s status as a Royal. Thus, ANL claims that ‘in a properly functioning democratic and constitutional monarchy, the fullest possible ambit of information, discussion and criticism as to the Crown and those who represent it is not only permissible but necessary’ (4). This is because ‘the public have always had a legitimate and natural interest in the lives of members of the Royal family and particularly about new members of the family.’ I cannot fathom what the word ‘natural’ is meant to accomplish here, but I do know the court will use its favourite expression to remind ANL of the difference between public interest and what interests the public. No doubt, Baroness Hale’s statement in Jameel about ‘tittle tattle’ will get an airing as well.
How could it be otherwise? The very idea that the fact of Royal status generates a public interest is inconceivable given previous judicial findings that all point in the opposite direction, from Prince Albert v Strange to HRH Prince of Wales v Associated Newspapers. Moreover, it would be incompatible with the principle in Von Hannover v Germany that the fact of Royal status (or celebrity status) is not enough to justify privacy-invading expression. This sort of generic claim simply cannot fly.
The second and third versions are more specific since they both rely upon there being a specific public interest in knowing of this matter. Yet, the more ANL presses this point – that there is something ‘weighty’ and meaningful in delving into the specific details of the Duchess’s estrangement from her father – the more unsustainable its position on privacy becomes. For, in providing what it calls balance to the ‘one-sided reporting’ of this estrangement, the more intimate the information becomes, including not only the letter but also the text messages and behind-the-scenes interactions that all speak to the relationship’s inner workings. The idea that these candid, naked images of the relationship is a thing alien to privacy is incredible.
The second version of the claim is that the Duchess’s relationship is a matter of public interest because Kensington Palace made it so when it issued a statement (an ‘official statement’ no less, (para 16.6)) announcing his non-attendance. In doing so, it rendered the ‘reasons for the apparent rift between them’ a matter of ‘natural and legitimate interest’ for the public (para 16.6). This version is no more promising than the generic one. An ‘official’ statement that a Royal is pregnant, for example, does not generate any right to more information about, say, the circumstances of conception or, later on, the specifics of delivery (How dilated was she? What position was she in? Were stitches required?), no matter how ‘naturally interested’ the public might be.
The Court of Appeal decision in McKennitt v Ash rather scuppers ANL’s position here for disclosure of the fact of a relationship breakdown does not render the details behind it any less private nor does it afford the public an opportunity to pry. In order to make this claim work, ANL would have to show some greater connection between the fact of this estrangement and the nature of her Royal duties (something it cannot do). The best that ANL has is that since the public paid for the wedding, they have some sort of vested interest in knowing why their invited guest, Mr Markle, failed to show (best being a relative term).
The third version is the most remarkable of all, which is based on a combination of waiver (para 13.8) and, as the second version alludes to, setting the record straight (para 15.13). The Duchess, ANL claims, waived her right to privacy in the letter not only by her exquisite penmanship but also because People magazine, in the US, published a story about the Duchess’s relationship with her father which purported to rely upon information provided by five unnamed ‘close friends’.
These sources could not have been invented, nor their testimony fabricated, exaggerated, or be in any other way unreliable, according to ANL for the following reasons:
1) the claimant’s failure to deny her involvement with the story proves complicity; as does
2) her failure to complain about it;
3) the information in the story could ‘only’ have come from her ‘not least because it presented events entirely from her perspective and in a way favourable to her’;
4) (and this is my favourite part) the interview contained ‘details of the interior of her home, domestic arrangements and pets. These details could ONLY have been provided by people who know the claimant INTIMATELY.’ (emphasis added) (Vets? Interior designers? Decorators? Cleaners? The postman? Need I go on?) (para 13.8.2).
Nevertheless, ANL argues that these disclosures, whether direct or indirect, were sufficient to neutralise her privacy claim and/or provide sufficient public interest to justify interference. This, they say, is because the People magazine story presented Mr Markle in such a bad light that they were entitled, on his behalf, to correct the misrepresentation.
If we muscle our way past the poor presentation, this version represents the only interesting aspect of the defence – albeit that is not saying much.
Nevertheless, ANL, I think, overestimates their chances of proving waiver and, in this, projects an impoverished conception of the notion. The idea that one can waive the right to privacy, as they suggest, by knowing of a friend’s involvement in a story – or even encouragement or direction – is a stretch. Such actions are not sufficiently unequivocal to constitute the required standard. Indeed, as a matter of principle, the waiver claim cannot succeed simply by demonstrating the fact of selective disclosure for that is the basis of privacy. Consider the example of a famous married couple who issue a statement that discloses a series of bare facts: we are getting divorced, we have been leading separate lives, there is no one else involved, we shall always be friends, our children are always our priority, we shall disclose no more information and we ask the press to respect our privacy, etc, they are confirming their right to privacy through these selective disclosures.
Yet, in this case, I think ANL is mistaken to believe that the problem (as they see it) is one of waiver when, in fact, it is about free speech, if it is about anything at all. ANL’s complaint is that the Duchess, in making these indirect disclosures or otherwise allowing them to be made, colours the debate through one-sided presentations that are entirely favourable to her (in their view). Thus, this is entirely about their capacity to respond to this picture, for ANL is arguing that the information, which exists in the public domain, about the daughter-father relationship is incomplete and that it has further information that addresses this gap and ought to be known.
Sadly (for them), there is a fatal flaw in this third version of the public interest claim, for the record can be set straight only if what ANL is reporting is true. The Duchess says that the story has been published in a manner that is misleading and dishonest. If that is right, then the public interest claim fails. Clearly, ANL has not anticipated this rather obvious point, as is apparent when they say: ‘the Claimant’s case on alleged deliberate omission, suppression and manipulation of… the letter and falsity… is confused and incoherent… because neither falsity nor dishonesty is an element of misuse of private information.’ They might want to give McKennitt v Ash just one more read…
Interestingly, the majority of ANL’s defence is devoted to the misuse of private information claim. In doing so, they underestimate (or else give the firm impression of underestimating) the strength of the Duchess’s claims in data protection and copyright.
As may be anticipated given the nature of the privacy defence, ANL claims there has been no breach of the GDPR since, as I mentioned above, ‘the personal data … did not convey any personal or sensitive information’. Alternatively, she ‘implicitly consented’ to them processing this personal data because ‘the claimant’s personal data is processed by UK and foreign media organisations on a very regular, perhaps daily, basis’.
Alternatively, it is said that the exemption contained in Art 85 of the GDPR applies. Alternatively, there is no defence, but there should be because ‘the Defendant reasonably believed, and believes, that the publication of material constituting the Claimant’s personal data was and is in the public interest’ and ‘it would have been incompatible with the purposes of journalism to require the Defendant to obtain the Claimant’s consent to the processing of her personal data… Further, it is incompatible with the purposes of journalism to require all reporting to comply with the vague standard of “fairness”…’ This is all a bit thin on detail let alone precedent.
Since, as we know, the Art 85 exemption exists to protect freedom of expression, the interference with the rights of others (namely, the Duchess’s Art 8 rights) is justifiable only where the public interest in expression demands it. In this, I think ANL places too much emphasis upon the importance of their own belief in their right to interfere with Art 8 rights and not enough upon the reasonableness of their actions. Indeed, the defence will stand or fall on the success of the misuse of private information claim, as was the case in Campbell.
ANL, though saves the best until last, which, as they prove, is not the same thing as closing with your strongest argument.
It sets out its defence to the copyright claim in the following terms:
 ‘Copyright protects original literary works insofar as they are original. Originality as regards a literary work requires the literary work to be the author’s own intellectual creation qua literary work. Moreover, the protection conferred by such copyright protects the author against unauthorised reproduction of a substantial part of that which is original in the work, namely a substantial part of that which is the author’s own intellectual creation qua literary work.’
 ‘The Letter purports to recite pre-existing facts both past and present including the Claimant’s views of her father and his conduct. As set out above, the Letter is, and primarily comprises, an admonishment of her father. As recited in words those pre-existing facts and admonishment are neither the Claimant’s own intellectual creation nor original.
 Accordingly, it is denied that the Letter comprises the Claimant’s own intellectual creation and therefore it is denied that the Letter is an original literary work.’
Barristers speak euphemistically when they say ‘unusual’, ‘novel’, and ‘interesting’. This is all three.
I realise that ANL had to submit something in its defence. It could hardly file one that said ‘we’re sorry, who do we write the cheque out to?’ But unless it can persuade Alec Guinness to reprise his role (‘There is no claim here. These aren’t the Droids you’re looking for. ANL can go about its business’), the prospects are bleak.
Dr Paul Wragg, Associate Professor of Law, University of Leeds, Associate Fellow of the Honourable Society of the Inner Temple.
Part One of this two part post was published on 22 January 2020.
Really excellent hatchet job. (Saved me the trouble!)
I wonder if the defence legal team understand that, in the unlikely event that their fatuous argument with respect to the copyright claim actually succeeds, they would have, at a stroke, effectively removed copyright protection from virtually all newspaper content with the exception of a few opinion pieces and the adverts? Perhaps the Meltwater case could then be re-run.
If Mr Justice Warby struck out the “dishonesty and malicious intent” claim, would it weaken the chance to disprove ANL’s third version of public interest defence (privacy waiver + setting the record straight for Thomas Markle)? And, would the nine articles supporting the dishonesty claim become inadmissible to the case, and therefore, removing the possibility of claiming damages?