Robert Kay, Partner
On 2 December 2021, in the case of Duchess of Sussex v Associated Newspapers Ltd, the Court of Appeal dismissed an appeal by Associated Newspaper Limited (ANL). Earlier in the year, the High Court agreed that the Duchess of Sussex, Meghan Markle, “had a reasonable expectation of privacy” after a letter to her father Thomas Markle was published in the Mail on Sunday. The successful appeal will undoubtedly be viewed with considerable relief in the Sussex household. To what extent, however, will this decision shape the UK media’s respect for privacy? Furthermore, what will be the impact of this decision on defamation law concerning newspaper coverage of high-profile figures?
What led to the initial High Court decision?
After the Mail on Sunday and MailOnline published, in a series of five articles, the contents of a private letter between the Duchess of Sussex and her father, Thomas Markle, , Meghan Markle brought a claim for breach of privacy and copyright against the parent company of the paper and website, ANL. ANL argued that the articles were published as a means of correcting inaccuracies in relation to Thomas Markle which stemmed from a separate article published in a US magazine.
Lord Justice Warby (as he is now) found in favour of the Duchess without requesting a full trial. He agreed that the contents of the letter were private and did not contain matters of public interest. He also affirmed that the Duchess had a “reasonable expectation of privacy”. As a result, summary judgment was granted for the misuse of private information and infringement of copyright.
Following the High Court decision, ANL took the matter to the Court of Appeal, which – following 2½ days of legal argument, agreed with Lord Justice Warby’s decision.
Why did the Court of Appeal dismiss the case?
The Court of Appeal dismissed the Appeal brought by ANL after an assessment of the decisions made by the High Court, concluding that:
- Privacy vs Freedom of Expression: The tests used by the High Court when weighing up freedom of expression versus privacy rights were correctly applied;
- New evidence presented was insufficient:The new evidence presented by ANL did not sufficiently focus on the legal matters raised in the Appeal; instead, focusing on the “drafting of the letter and to the respondent’s knowledge about the contacts between the Kensington Palace communications team and the authors of a book, “Finding Freedom””.
- Expectation of privacy: Lord Justice Warby dealt in ‘impeccable detail’ when considering whether there was a reasonable expectation of privacy (Murray v Express Newspapers Plc  EWCA Civ 446);.
- Copyright: The High Court judge Lord Justice Warby set out all of the appropriate arguments in relation to copyright and reached a clear conclusion (applying Ashdown v Telegraph Group Ltd  EWCA Civ 1142)
- Fair dealing: When considering the matter of ‘fair dealing’ (i.e. whether the use of copyright material is lawful or not), the Court of Appeal agreed with the the High Court was correct in determining that the use of the content of the letter was unfair – as such, ANL had not successfully made the case that fairness of publication outweighed the right to copyright protection.
The Court of Appeal also addressed the matter of whether it was appropriate and proportionate to publish the letter as a means of enabling Thomas Markle to rebut inaccuracies in the US magazine publication. They concluded that while this may have been the case, it was not necessary to “deploy half the contents of the Letter as ANL did”. As the final paragraph of the judgment explains, the purpose of publishing the letter between the Duchess and Thomas Markle was not to deal with inaccurate allegations, but “to reveal for the first time [to the world] the “[t]he full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding”. They also concluded that the letter was private despite the fact its contents might be leaked to the media.
How did the Duchess of Sussex respond, and what will happen now?
In response to the Court of Appeal’s decision, the Duchess of Sussex stated, “This is a victory not just for me, but for anyone who has ever felt scared to stand up for what’s right. While this win is precedent-setting, what matters most is that we are now collectively brave enough to reshape a tabloid industry that conditions people to be cruel and profits from the lies and pain that they create”. ANL is currently considering whether to appeal to the Supreme Court.
What does this case mean for privacy rights and media freedom?
Although previously the media appeared to have greater freedom to report on these issues (at the expense of privacy), the case illustrates that this may no longer be the case. Judges appear prepared to not only scrutinise reporting of the information but also its context. High profile individuals do not automatically lose their privacy rights simply by being public figures, even if they may seek to use the media to control their public image.
What does this case mean for reputation protection and defamation?
The legal arguments considered by the Court of Appeal and the High Court were those of privacy and copyright rather than defamation.
If the Duchess was to bring a claim for defamation she would have to prove:
- The comments published by ANL were defamatory; and
- Publication of the statement caused or was likely to cause ‘serious harm’ to the Duchess’s reputation.
This then raises a question regarding whether publishing private information, even if serious reputational harm was caused, can be considered because the words used were those of the Duchess herself and were not false. A clue can be found in case law (see Hannon v News Group Newspapers Ltd  EWHC 1580 (Ch)), where the Judge suggested that, unlike for defamation, there is no defence to a claim for reputational damage which also includes breach of privacy/misuse of private information even if the information in question is true. As such, the publication of private information in the media, while possibly true, may cause reputational damage to high profile individuals and form the basis for a claim for damages.
In the wake of the latest decision by the Court of Appeal, the Duchess of Sussex has made it clear that she wants to see the ‘tabloid industry’ overhauled. For British newspapers, the recent loss by ANL of their appeal case may not lead to substantial changes, but it may embolden those who are on the receiving end to bring cases for larger damages, including for defamation and slander rather than just breach of privacy and copyright. However, and perhaps of greater concern for the media, is that – for now – the balance of power has moved towards those high profile individuals and celebrities, even should they be inclined to use the media for their own self-interest.
Lastly, and seemingly overlooked in much of the reporting of the outcome, the case is a reminder to lawyers to focus on the issues. The Court of Appeal, referring to those acting for ANL, said “lt would not be an exaggeration to say that no expense has been spared in advancing and resisting the appeal. Unfortunately, however, it rapidly appeared in oral argument that what was lacking was a clear focus on the factual and legal errors that the Judge was alleged to have made”.
We await developments with considerable interest and shall keep you updated.
To find out how we can advise you on all matters relating to your reputation and protection of it, as well as GDPR and data protection law, please contact Robert Kay (Partner and head of Litigation and Dispute Resolution) on +44 (0)20 7908 2525.
Please note – this articles does not constitute legal advice..