On 2 December 2021, the Court of Appeal upheld the High Court’s decision to find, on a summary basis and so without the benefit of a trial, that the Duchess of Sussex Meghan Markle “had a reasonable expectation of privacy” in regards to a letter written to her father. Sections of the letter were published by the Mail on Sunday in February 2019.
The Duchess brought proceedings against Associated Newspapers Ltd (ANL), the paper’s parent company, for breach of privacy and copyright in October 2019.
The court heard that 585 out of the 1,250 words in the letter had been made available to the public by the Mail on Sunday across five articles. As part of their ruling, the judges found that “the contents of the letter were private and concerned personal matters that were not matters of legitimate public interest, and in which she enjoyed a reasonable expectation of privacy.”
Significance of the judgment
While ANL may frame this judgment as worrying from a freedom of expression perspective, the business of the Court of Appeal was solely to decide whether the judge, Mr Justice Warby, was right to give judgment in favour of the Duchess on a summary basis and without the benefit of a full trial.
The court held that the judge was right to do so, and that he was in as good position as a trial judge would have been to determine that publication of the whole letter was a breach of copyright and misuse of private information. The court specifically noted that it was hard to see what evidence could have been adduced at trial to change that assessment.
The Court of Appeal endorsed the legal tests applied by Mr Justice Warby when weighing up freedom of expression versus privacy rights, and any defences ANL had to the copyright claim. Publication of an extract may have been a proportionate and justified way for Mr Markle to respond to the People magazine article, but that was not what they had done.
Emily Cox, Head of Media Disputes, says: “This judgment is yet another resounding win for the Duchess of Sussex. ANL now have the option to accept the court’s judgment, or to try to take the appeal to the Supreme Court. Their prospects, if they did so, appear slim. It may now be time for ANL to publish the apology and move on.”
Coverage in media
Emily was quoted in Tatler as part of an article on the ruling. She noted that “the duchess will be delighted that this case has not been sent back down for a full trial, with the associated fanfare and circus, and friends and family taking the stand.”
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