Newspaper Loses High Profile Case, Ergo, Dangerous Precedent? – Dominic Crossley

“Publishers and their legal teams will fear that yesterday’s victory for the Duchess of Sussex is a leap towards a judge made privacy law” ran The Times article the day after Mr Justice Warby granted Summary Judgment in Meghan’s case against the Mail on Sunday (HRH The Duchess of Sussex v Associated Newspaper Limited [2021] EWHC 273 (Ch)).

Other newspapers lined up their “expert commentators” for similar grave warnings about the implications of the case for press freedom and the public interest.  Let’s be clear: this ruling has decided that a letter from a daughter to her father should not have been published by a national newspaper.  It could hardly be less surprising.

It has become a standard response after every high profile media case in the UK that the newspapers spend the following day warning their readers about dire repercussions: a “gagged” media and a green light for rich celebrities to silence critics or “curate” their reputations.  Most readers will understand the self-interest at play here, and journalists and other commentators are entitled to their own opinions and to fight their corner.  Indeed, given that I am a media lawyer, I am happy to declare my interest in advocating for effective privacy rights.  I am also interested in a fair account and analysis of the impact of the outcome and consequences of media law cases.

In this context, and amidst the deafening noise of the newspaper commentary on Meghan’s case, I would like to offer the following thoughts:

• Just because the case has attracted a great deal of publicity does not mean that it creates new law.  Meghan’s case succeeded on the basis of UK privacy law that has been developing over nearly 25 years (since before the introduction of the Human Rights Act 1998).   The judge quotes and applies principles well-established in other well-known cases.   Meghan also succeeded on the grounds of copyright, which originated in 1710 by way of the Statute of Anne, more recently set out in the Copyright, Designs and Patents Act 1988.    Mr Justice’s Warby, whose practice when at the bar was mainly for newspapers, sets out the law on privacy and copyright with great care and applies the facts of this case as put forward by the parties.  I cannot see anything at all novel about his approach to the issues or the application of the well-established law in the UK.
• Meghan did not just win this case.  Her legal team applied for Summary Judgment meaning that she had to demonstrate that the Mail on Sunday had no “real prospect” of succeeding in its defence or that the case would otherwise justify a trial.  The Judge had to assume the facts in the Mail on Sunday’s favour.  Making an application in a case like this, where you know you have to overcome a higher bar than you would at trial, is high risk.  But the Judge was emphatic in his conclusions.  On privacy: “the disclosures [of the letter] were manifestly excessive and hence unlawful”. On copyright: “The defendant’s factual and legal case… seem to me to occupy the shadowland between improbability and unreality”.
• This case should not herald a worrying change in publishers’ behaviour such as choosing to publish in the US rather than the UK. Firstly, whilst I am not qualified to comment on US law, I do know how fiercely copyright is protected in the US and I also know that privacy rights are increasingly well established in many states.  Publishing a private letter without the consent of the author would have presented significant legal risk in the US.  But, in any event, does the UK need to ensure that its law follows any jurisdiction with weaker privacy laws because of a fear that publishers will launder their stories elsewhere?  One would hope not.  Likewise, the Mail on Sunday chose to publish in the UK, without consent, and did so, knowing full well the risk it was taking of infringing Meghan’s UK rights. Presumably it was considered worth the risk.
• The creep of greater legal protection for celebrities is, in my view, significantly overstated.  Media law has developed, as the law tends to, and the extent of privacy law has become firmly established in the UK by cases such as PJS v News Group Newspapers Ltd [2016] UKSC 26 (in the Supreme Court) and ZXC v Bloomberg [2020] EWCA Civ 611 (heading to the Supreme Court from the Court of Appeal). But very significant developments in media law have been in favour of publishers.  The Defamation Act 2013 has made it more difficult for claimants to succeed in libel claims.  Conditional fee agreements have been curtailed, after much media lobbying, so that many claimants cannot now seek redress against a newspaper because they cannot afford the legal costs. And, perhaps most strikingly, the Leveson recommendations have been shelved leaving complainants with only the newspapers’ own creation IPSO as their unlikely protector, and no “Leveson 2” to examine any skeletons in the editors’ cupboards.

Perhaps I should think positively: if the UK newspapers are so gloomy about this Judgment then maybe it is the necessary slap on the wrist they needed and they will be deterred from similar intrusions into the lives of Meghan and others in the future.  The reaction, thus far, has been predictable but not encouraging.

Dominic Crossley is a Partner at Payne Hicks Beach