Duchess of Sussex granted summary judgment in privacy claim against Associated Newspapers Limited.
On 11 February, the High Court handed down summary judgment in the high-profile claim filed against Associated Newspapers Limited by the Duchess of Sussex for misuse of private information and copyright infringement. The former actor’s claim arose out of Associated Newspaper’s publication of large parts of a five-page letter that she had written to her father, Thomas Markle, in the Mail on Sunday and Mail-Online on 9 February 2019.The existence and a description of the contents of the letter had first become public on 6 February 2019 in an article published by US magazine ‘People’.
In order to succeed in her Application for summary Judgment the Duchess was required to demonstrate that Associated Newspapers had no real prospect of successfully defending the claims at trial. In his decision Mr Justice Warby held that:
(1) the Duchess had a reasonable expectation of privacy in the Letter,
(2) Associated Newspapers interfered with that expectation, and
(3) the publication of the articles was irrelevant to any legitimate aim of the publisher, and – making the fullest allowance for editorial judgment – wholly disproportionate.
On this basis he determined that there was no prospect of a different judgment being reached at trial and gave summary judgment in favour of the Duchess. The Court’s decision to forego a full trial - and its unfavourable judgment of Associated Newspaper’s “fanciful” defence - sent a clear message to the press: that where a balance must be struck between an individual’s privacy rights and freedom of expression, the starting point must always be the individual’s autonomy in controlling their private information, irrespective of their public status. That is, the fact alone that an individual is high profile will not be sufficient to justify breaching their privacy.
Why did the defences raised by Associated Newspapers fail?
Claim 1: Misuse of private information
Associated Newspapers denied the Duchess’s claim that the contents of the Letter were private and that she enjoyed a reasonable expectation of privacy. It argued that the Duchess’ privacy rights were destroyed or compromised by:
- her knowledge of her father’s propensity to speak to the media about their relationship meant that she must have anticipated he would release it to the press;
- the fact that the publication of the existence and content of the Letter was lawful in the US;
- her own conduct in intending publicity about the Letter (having allegedly instructed friends to reveal its existence to People magazine);
- the prior publication of information about the Letter; and/or
- the article in the People gave a misleading account of the Duchess’s relationship with her father, so that publishing the Letter was justified to protect Mr Markle’s rights and those of the public at large.
The Court applied a two-stage test to decide whether the Associated Newspapers had misused private information:
Stage 1: Was there a reasonable expectation of privacy?
The first question considered by the Court was whether the Duchess had a “reasonable expectation” of privacy in relation to the Letter. It rejected the defendant’s case on this question and found that “there is much that is plain and obvious”. The Court determined that, joining the Royal family, a public figure such as the Duchess does not give up her right to a private life, nor open up every aspect of her private and family life or correspondence to examination in the press. Further, disclosure of information about the existence of the Letter and a description of its contents (such as in the People Article) is not the same thing as disclosure of its detailed content. Indeed, Associated Newspaper’s promotion of the articles - with “World Exclusive” print coverage which “revealed” the contents of the Letter “for the first time” - was predicated on its contents not already being in the public domain.
The context of the Letter within the articles was also considered. For instance, Associated Newspaper’s decision to instruct handwriting experts to examine the Letter and publish their denigrating “insights” into the Duchess’s character, such as: “she is a ‘narcissistic showman whose self-control is wavering’”, did not assist Associated Newspapers’ position.
Stage 2: Balancing the parties’ competing rights
The second question involved a balancing act to decide whether the Duchess’s privacy rights were outweighed by Associated Newspapers’ freedom of expression rights and the interests of its audiences. The Court concluded that: “taken as a whole the disclosures were manifestly excessive and hence unlawful”. The following points were considered when balancing parties’ competing rights:
- The Duchess’ attitude to publicity
Associated Newspapers had suggested that the Duchess sought to manipulate her public image and, in so doing, weakened her privacy rights. In determining the point Mr Justice Warby noted that, while a person who actively seeks the limelight may consequently have a reduced expectation of privacy, the analysis had to be “focused and not broad-brush”. The fact that the Duchess was willing to publicise details of her private life bore no impact on her reasonable expectation that a letter conveying her personal thoughts and heartfelt feelings to her father would remain private.
- Public interest v public curiosity
Associated Newspapers argued that it was in the “public interest” to disclose the Letter. Mr Justice Warby reiterated the distinction between contributing to a debate of general interest in society and satisfying readers’ curiosity about a person’s private life. He concluded that the articles were plainly incapable of making any contribution to a debate of public interest. Whilst the public may be interested in the subject matter, it was not important for the public to learn of it.
- Correcting the record
Associated Newspapers also argued that the article already published in the US, in People magazine, had misled the public about the relationship between the Duchess and her father, so that disclosure of the letter was warranted in order to correct the record. Mr Justice Warby pointed out that Associated Newspapers had quoted a mere 25 words from the People article in advancing this argument. The People article was not an “attack” on Thomas Markle but was a misdescription of the Duchess’s behaviour as the letter was not an “olive branch” as the People article had supposed. Mr Justice Warby’s view was that the appropriate response would have been for Thomas Markle to approach People magazine, or to consult with a qualified third party to draft a proportionate reply.
The Court concluded: “what was done was precipitate, largely irrelevant to any legitimate aim, and – making the fullest allowance for editorial judgment – wholly disproportionate”. It was concluded that an early “summary” judgment was reasonable because “it is fanciful” to suppose a different conclusion would be reached after a full trial.
Why is the decision legally important?
Associated Newspapers was, presumably, disappointed that a high-profile, showpiece trial would not now be taking place with the big show of the Duchess giving live witness evidence and undergoing cross-examination. There will however be concerns among the news media that the decision places shackles on its ability to publish leaked correspondence in the future. The Judgment gives little guidance as to the circumstances where public interest might trump the right to privacy so such a publication will now be more risky. On the other hand, in this instance there was clearly no real importance that the information was relayed to the public, rather than being material that some element of the public was interested in as gossip.
The Judgment emphasised that, merely because a person discusses an area or “zone” of their life and chooses to disclose some private information, does not mean that all entitlement to privacy in relation to that zone is lost. The individual is entitled to “exercise close control” regarding the flow of private information that they are prepared to make public. This suggests that rights to privacy are stronger than was previously thought. Of course, if a person had given false or misleading information to the public about that “zone” of their life then the media would remain able to argue that it was in the public interest that the truth is made known, so long as what is published goes no further than necessary to present the true position.
A similar example of such behaviour by a newspaper is the claim brought by England cricketer, Ben Stokes and his mother against The Sun for invasion of privacy after that paper published a front page story detailing a tragedy that had occurred in their family many years previously. The publication was swiftly condemned and described by Mr Stokes as “immoral and heartless”. The decision in the Duchess’ case would indicate that The Sun is unlikely to be unable to rely successfully on a public interest defence where the story has been publicised for gossip rather than because it is important that the public is aware of the story.
Claim 2: Copyright infringement
In addition to the misuse of private information claim, the Duchess also claimed that Associated Newspapers had infringed the copyright she held in the letter and in an electronic draft of the letter.
The Court rejected Associated Newspapers’ argument that the electronic draft of the letter was not an original work because it was merely a recitation of facts and an “admonishment” aimed at Mr Markle. It noted that if this proposition was true, copyright would not subsist in an accurate court report, which was a “remarkable” argument for a news publisher to put forward – Mr Justice Warby noting that “there is of course no copyright in news, but copyright has been recognised as subsisting in the literary form of a news report”. Mr Justice Warby further commented that the electronic draft involved some choice of words; it was not a mechanical exercise. Indeed: “there must be 50 ways to scold your father.” The electronic draft was inevitably the product of intellectual creativity sufficient to render it original. Quantitatively and qualitatively, the articles copied a substantial part of the work and accordingly the Court found Associated Newspapers was liable for copyright infringement.
Associated Newspapers argued their use of the electronic draft of the letter was a permitted act under the Copyright, Designs and Patents Act 1998. This permits “fair dealing” with certain types of copyright work for specified purposes, including reporting current events. On this issue, the Court held that the purpose of the articles was to report the contents of the letter and critique the Duchess’s character, and in doing so it had violated the Duchess’s privacy rights. None of this could be regarded as fair dealing with the copyright work for the purposes of reporting current events.
There was no question that the Duchess was at least an owner of copyright in the literary form of the electronic draft which had been infringed by the defendant. There was a minor query as to whether one or more of the Kensington Palace Communications Team had been involved in and contributed to the writing of the letter. If so, this could create issues of co-authorship and joint ownership (or might mean that a certain part of the letter was a work attributable to another author and owner). This was an issue that the Court determined could not be decided by summary judgment and would require a full trial with input from relevant witnesses. However this does not impact the underlying decision that the Duchess owned copyright which had been infringed, it only raised a query as to what was the full extent of copyright and infringement and the remedies and quantum of damages available.
Finally, the Court considered whether publishing the letter was in the public interest. It noted that freedom of expression will rarely trump copyright and concluded that - in light of its verdict on fair dealing – it was not in the public interest to publish the letter. While the position on copyright infringement is less remarkable than the privacy decision, the Court’s ruling nevertheless provides important guidance on infringement in the context of reporting and possible media defences to it. The Judgment is also informative on how the “fair dealing” exemption will be unpacked and applied in the context of reporting and breach of privacy rights.
What’s next in the litigation?
It is possible that Associated Newspapers will make an application to appeal the Court’s decisions. This would be surprising as the Court’s reasoning in this Judgment was both highly persuasive and broadly in line with the expectations of legal commentators. The Court’s view on the centrality of an individual’s right to a private life and its enshrinement in English law has been plainly stated. While the press may be afforded certain journalistic privileges, these privileges are by no means unfettered. Media companies may not assume that they are free to encroach on an individual’s privacy rights merely because the individual is high profile. An individual’s privacy rights must be seriously considered the starting, middle and endpoint of the editorial process.
For more information on the topic, please contact Bryony Ford.
