HRH the Duchess of Sussex v Associated Newspapers Ltd
18 February 2021
The Claimant in this action is the Duchess of Sussex, Meghan Markle, who first rose to fame through her acting role in the drama “Suits” and is now globally recognised as the wife of the Duke of Sussex, Prince Harry.
Around the time of the Claimant’s wedding, in May 2018, she was experiencing difficult and widely reported issues relating to her relationship with her father, Thomas Markle. Three months after the wedding, on 27th August 2018, she wrote her father a five page letter, herein after referred to as “the letter”. The existence of the letter first became public when it was referred to in an article in the US People magazine. Mr. Markle subsequently provided the Defendant with a copy of the letter, following which it published large sections in a series of five articles reported in the Mail on Sunday and MailOnline.
The Claimant subsequently issued proceedings, claiming that the publication of these articles involved a misuse of her private information, a breach of data protection legislation and an infringement of her copyright in the letter. The present judgment addresses the Claimant’s application to strike out the defences to the claims in misuse of private information and for summary judgment in relation to that claim and on the claim for copyright infringement.
The Claimant’s Case
The Claimant argued that the contents of the letter were private, and related to her private and family life as opposed to her public profile or her work. The letter contained details of her communications with her father in and around the time of her wedding and relating to his non-attendance. It also referred to his interactions with the media against her wishes. The Claimant argued that these were personal matters and matters over which she had a reasonable expectation of privacy and subsequently that the Defendant’s conduct in publishing the contents of the letter was a misuse of her private information.
In relation to the issue of copyright, the Claimant argued that the letter together with an electronic draft on her phone were original literary works in which copyright subsists and that she is the author of these works and as such the Defendant had infringed her copyright by reproducing and making public substantial parts of the letter.
In their defence the Defendant relied upon a number of factors, including the fact that Mr. Markle had provided them with a copy of the letter in an attempt to correct perceived inaccuracies in the previous article in People magazine. They also relied upon the fact that the Claimant disclosed personal information relating to the letter to the authors of a biography relating to her and her husband, called Finding Freedom, as published in mid-2020.
The Defendant argued that the Claimant did not have a reasonable expectation of privacy in relation to the content of the letter and in the alternative that any such expectation of privacy was outweighed by the need to protect Mr. Markle and the public at large. The Defendant also denied that the letter was an original literary work in which the Claimant held copyright and in the alternative relied upon the defences of fair dealing, public interest and freedom of expression.
The Court’s Decision
1. Misuse of Private Information
The court concluded that the Claimant had a reasonable expectation that the contents of the letter would remain private and that the articles published by the Defendant had interfered with this reasonable expectation. The court also held that the Defendant had no realistic prospect of defending this issue at trial.
The court found that there was some merit in the Defendant’s argument that they had sought to correct the inaccuracies in the article in People magazine but found that it was unreasonable and wholly disproportionate to publish large sections of the letter for this, or any other reason, without notice to the Claimant. The court held that the resultant interference with freedom of expression is a necessary and proportionate means of pursuing the legitimate aim of protecting the Claimant’s privacy.
The court entered summary judgment in relation to the claim for misuse of private information and a further court hearing shall be held in due course to deal with the issue of damages and other remedies.
2. Infringement of Copyright
The court held that the electronic draft of the letter, to which the claimant had limited her case, was and would inevitably be held to be the product of intellectual creativity sufficient to render it original and as such to confer copyright on its author or authors. The court subsequently found that there had been infringement of this copyright by virtue of the fact that the Defendant had copied a substantial part of the letter in the articles complained of. However, the court did not fully determine the issue of copyright infringement as it found that there remains an arguable case that there may be joint authors of the letter and as such joint ownership of the copyright, due to the suggestion that members of the Kensington Palace communications team had assisted the Claimant in the drafting of the letter. As such it remains that this issue shall be addressed at trial while summary judgment was granted in relation to the other issues.
The court has granted summary judgment in relation to the misuse of private information claim and in relation to the majority of the copyright claim, excepting the potential issue of joint ownership. The action shall be listed for further hearing to deal with the outstanding copyright issue together with the issue of damages and remedies in relation to the misuse of the Claimant’s private information.
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