HRH The Duchess of Sussex v Associated Newspapers Limited 2021] EWCA Civ 1810

December 21, 2021 |

The Court of Appeal upheld the summary judgment decision of Warby J in HRH The Duchess of Sussex v Associated Newspapers Limited [2021] EWCA Civ 1810 which found that Associated Newspapers Limited had breached the Duchess’ reasonable expectation of privacy with the publication of a letter from her to her father Thomas Markle.

FACTS

The court summarised the facts as:

  • Mr Markle did not attend the wedding of the Duke and the Duchess on 19 May 2018 [14].
  • He was admitted to hospital days beforehand for emergency heart surgery.
  • Text messages from the Duchess  made it plain that  before the wedding Mr Markle behaved in ways which caused her

“concern because of the publicity they were likely to and did cause, and the impact on her, [the Duke], and [Mr Markle]”.[14]

    • Mr Markle:
      • engaging with the media (e.g. a front-page Mail on Sunday report on 13 May 2018 was headed “Meghan’s Dad staged photos with the paparazzi”, and reported that Mr Markle was “colluding with the paparazzi to stage a series of lucrative photo opportunities”, for which he apologised by text to the Duchess on 14 May 2018).[15]
      • being well aware that the Duke and Duchess wanted him to avoid engaging with the media, and that all their correspondence was personal and private in character [16].
      • continuing, thereafter, to have dealings with the media which resulted in press articles. The Articles themselves referred to “a series of damaging interviews” given by Mr Markle [16].
    • The Duke texting Mr Markle on 17 May 2018 asking him to “stop talking to the press for your sake and hers”, and expressing concern that Mr Markle had not “returned any of our 20+ calls since we all spoke on Saturday morning” [15]. the run-up to the wedding was fractious, revealing substantial differences of approach to dealing with the media.

The letter

  • The Letter was sent on 27 August 2018 with bold text identifying words published in the Articles, and italicised text being the judge’s interpolations [18]:

Daddy,

[1] It is with a heavy heart that I write this, not understanding why you have chosen to take this path, turning a blind eye to the pain you’re causing. The last time we spoke was 7 days before our wedding when Harry and I called you. This was followed by a turbulent and confusing week where we called you multiple times a day to try to understand what was happening.

[2] From my phone alone, I called you over 20 times and you ignored my calls, opting instead to solely speak to tabloids – leaving me in the days before our wedding worried, confused, shocked, and absolutely blindsided.

[3] Post wedding you then made a choice to begin an onslaught of media interviews, which are still ongoing. Your actions have broken mv heart into a million pieces – not simply because you have manufactured such unnecessary and unwarranted pain, but by making the choice to not tell the truth as you are puppeteered in this. Something I will never understand.

[4] You’ve told the press that you called me to say you weren’t coming to the wedding – that didn’t happen because you never called. You’ve said I’ve never helped you financially and you’ve never asked me for help which is also untrue; you sent me an email last October that said, “if I’ve depended too much on you for financial help then I’m sorry but please if you could help me more, not as a bargaining chip for mv loyalty. You already have that whether you realize it or not.”

[5] And while I still refuse to read any press, it was shared with me what you said about … [Here, the claimant complained that her father had been unjust in what he wrote about a relative, and the claimant’s behaviour towards that relative. She provided a detailed rebuttal].

[6] I have only ever loved, protected, and defended you, offering whatever financial support I could, worrying about your health be it your … [Here, the claimant referred to a number of health problems encountered by her father] …, and always asking how I could help.

[7] So the week of the wedding to hear about you having a heart attack through a tabloid was horrifying. I called and texted you and desperately tried to find out about the medical treatment you would need and where you would be. I begged you to accept help – we sent someone to your home, tried to have them drive you to the hospital, to get the best care and protection for you, and instead of speaking to me to accept this or any help, you stopped answering your phone and chose to only speak to tabloids. I will never understand why especially with you knowing I have always looked out for your health. … [Here, the claimant wrote about the nature and content of conversations with her father over the past 10 years]

[8] … in the last two years your obsession with tabloid media only exacerbated my worry for you, which is why I pleaded with you to stop reading the tabloids. On a daily basis you fixated and clicked on the lies they were writing about me, especially those manufactured by your other daughter, who I barely know.

[9] [The claimant wrote about her upbringing, her half-sister and their relationship] … Though you feel you did your best to stop her while you watched me silently suffer at the hand of her vicious lies, I crumbled inside. … [… The claimant described her feelings about her father’s health …] …

[10] I … urged you day after day to stop reading the tabloids. But you couldn’t – and your fascination grew into paranoia (and then rage) of how you were being portrayed. You know how much anguish tabloid press has caused – lies simply for click bait. So to suffer through this media circus created by you is all the more devastating. You continue to be manipulated by the press, who are likely promising you the world to keep churning out these fictitious stories, yet still ridiculing you. The lies you have been paid to share about me, about our help for you, … [Reference was made to support the claimant says her father received] … – is staggering and confusing. [… Reference was made to the contents of correspondence sent by Mr Markle …]

[11] We all rallied around to support and protect you from day one and this you know. So to hear about the attacks you’ve made at Harry in press, who was nothing but patient, kind, and understanding with you is perhaps the most painful of all. I will truly never understand it.

[12] For some reason you choose to continue fabricating these stories, manufacturing this fictitious narrative, and entrenching yourself deeper into this web you’ve spun. The only thing that helps me sleep at night is the faith and knowing that a lie can’t live forever.

[13] My hope is that you can take a moment to reflect on this. To remember our conversation seven days before the wedding when we asked you if the claims of you working with the paparazzi and press were true and told you if we tried to protect you from the story running (something we’ve never attempted to do for anyone – ourselves included) that we wouldn’t be able to use that strength to protect our own children one day. Even knowing that, you said it wasn’t true.

[14] I believed you, trusted you, and told you I loved vou. The next morning the CCTV footage came out. You haven’t reached out to me since the week of our wedding, and while you claim you have no way of contacting me, my number has remained the same. This you know. No texts, no missed calls, no outreach from you – just more global interviews you’re being paid to do to say harmful and hurtful things that are untrue.

[15] If you love me, as you tell the press you do, please stop. Please allow us to live our lives in peace. Please stop lying, please stop creating so much pain, please stop exploiting mv relationship with mv husband, and please stop taking the bait from the press. I realize you are so far down this rabbit hole that you feel (or may feel) there is no way out, but if you take a moment to pause I think you’ll see that being able to live with a clear conscience is more valuable than any payment in the world. I ask for nothing other than peace, and I wish the same for you.

Meg

Mr Markle replied to the Duchess in September 2018 with some of his reply was published in the Articles. It ended:

“I wish we could get together and take a photo for the whole world to see. If you and Harry don’t like it? Fake it for one photo and maybe some of the press will shut up”.[19]

The People Article

The People Article “The Truth about Meghan”:

  • was first published on 6 February 2019[20].
  • had a  sub-headline reading:

“[a]fter staying quiet for nearly 2 years, those who  know Meghan best are setting the record straight: ‘we want to stand up against the global bullying we are seeing and speak the truth about our friend'”.

  • was based on interviews with five of the Duchess’s friends, each of whom spoke on condition of anonymity.
  • had the stated purposes to correct the record and defend the Duchess against false and harmful publicity [20].
  • relevantly provided:

Longtime friend: [A] The Saturday before the wedding, she and Harry were told that a story was going to come out the next day saying that Tom was staging pictures with the paparazzi. Their team told them that if the story was fake, they could file a complaint. So Meg calls Tom and asks him, and he’s swearing up and down that it’s not true. The next day the pictures came out. Even with all that, Meg and Harry were still so focused on getting him to London. At no point was there talk of “Now that we know he lied, he’s in trouble.” Tom wouldn’t take her calls, wouldn’t take Harry’s calls.

[B] The next morning when the car got there [to take him to the airport], he wouldn’t get in. [Later] Meg heard he had a heart attack and she’s calling and texting, even up to the night before the wedding. It was like, “Please pick up. I love you, and I’m scared.” It was endless.

[C] After the wedding she wrote him a letter. She’s like, “Dad, I’m so heartbroken. I love you. I have one father. Please stop victimizing me through the media so we can repair our relationship“. Because every time her team has to come to her and fact-check something [he has said], it’s an arrow in the heart.

[D] He writes her a really long letter in return, and he closes it by requesting a photo op with her. And she feels like, “That’s the opposite of what I’m saying. I’m telling you I don’t want to communicate through the media. Did you hear anything I said?” It’s almost like they’re ships passing. …

  • inaccurately recorded the Letter and the Duchess’s purpose in sending it because:
    • it did not seek to repair the father-daughter relationship
    • it was not an olive branch
    • its main purposes were to reprimand Mr Markle for his previous conduct, and to try to dissuade him from talking to the press in future [21].
  • Associated Newspapers contended that the judge left out of his summary  essential aspects including allegations that:

(i) Mr Markle cruelly cold-shouldered the Duchess in the pre-wedding period,

(ii) Mr Markle had lied in alleging that the Duchess had shut him out after the wedding, and

(iii) the Duchess was always taking care of her father with incredible generosity [22].

The Articles

Mr Markle’s evidence was that:

  • the People Article:
    • “misrepresented the tone and content of [the Letter]” and he quickly decided that he “wanted to correct that misrepresentation”.
    • misrepresented Mr Markle’s reply, as it “implied that [he] wanted a photo for publicity reasons”.
  • he had never intended to talk publicly about the Letter, but decided to do so to defend himself publicly against vilification “by making out that [Mr Markle] was dishonest, manipulative, publicity-seeking, uncaring and cold-hearted, leaving a loyal and dutiful daughter devastated”.
  • he spoke to the Mail on Sunday, which “respected [his] wish to publish extracts from [the Letter]”. He chose the extracts with the sole purpose of defending himself “by countering the impression given of me and of the letters between Meg and me” by the People Article [23]

The editor of the Mail on Sunday stated that:

  • his editorial assessment was that there were “good reasons to publish the story”.
  • it seemed clear that the tone and contents of the Letter had been misrepresented, in a way that was unfair to Mr Markle: “what [Mr Markle] was saying was credible and … he was entitled to correct the record”. Mr Markle’s information “called into question” the conduct and behaviour of the claimant as a “prominent member of the Royal family”.
  • it appeared that the Duchess had “used” People magazine to promote a particular positive image as part of what Associated Newspapers called “Meghan’s media fightback” and there were “serious questions around the appropriateness” of that fightback.
  • it was “absolutely vital” to quote from the Letter, for the purposes of ensuring credibility. “[T]he point … was not just to convey what was in the Letter but rather to correct a misleading description in a previous report” [24].

The judge inferred that Mr Markle had provided the Mail on Sunday with a copy of his reply.

Associated Newspapers made no contact with the Duchess in relation to their proposed content.

Regarding the Articles published on 10 February 2019:

  • the front-page trailer showed a photograph of the Duchess and Mr Markle under the heading “World Exclusive” on “Meghan’s shattering letter to her father”, followed by two double page spreads [19]
  • there were 88 separate quotations from the Letter.
  • the True Tragedy Articles [25]:
    • said that “the full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding can be revealed for the first time today”.
    • referred to what had been said by the five friends to People magazine and contained indirect quotations from Mr Markle that the Letter was “far from conciliatory and has left him feeling devastated”.
    • said it was “unfair” for the friends to “spin a line” while he was being “criticised for ‘giving a handful of interviews to the press'”.
    • had a story-within-a-story headed “How Meghan’s media fightback led her Dad to reveal letter he wanted to keep secret”, reporting that “[Mr Markle] told no one about her letter and planned to ‘keep it totally private out of respect for her’ – until her friends launched their ‘attack’ on him last week. … [the Duchess was] said to have authorised five of her closest friends to speak to US People magazine to correct the falsehoods”.
    • said the People article painted Meghan in a glowing light, while insisting the negative stories about her were lies.
    • said that because of Meghan’s decision to reveal the private letter in the pages of the magazine Mr Markle had no choice but to go public with him saying “The letter was presented in a way that vilified me and wasn’t true,’ he said last night. ‘It was presented as her reaching out and writing a loving letter in the hope of healing the rift, but the letter isn’t like that at all. Meghan can’t have it both ways. She can’t use the press to get her message across but hang me out to dry. I have the right to defend myself'”.
    • published the parts of the Letter
    • had a second double-page spread includingthe “Harry Articles” [26]
    • included numerous point-by-point rebuttals of what the Duchess had said in the Letter. The Letter was quoted and then Mr Markle’s response to each point was recorded.

The Book

In August 2020, the Book was published [27].

Associated Newspapers’ case regarding the Book was:

  • to allege that the Duchess had collaborated in its production.
  • relied upon in support of

(i) its case on co-operation and its case that any expectation of privacy in the Letter had been “compromised” by the Duchess’s conduct in that she

(ii) had permitted information about her own private life and correspondence “to enter the public domain by means of the Book” and

(iii) did not object to details of her own or others’ personal relationships and correspondence being publicly disclosed, provided the disclosure was favourable or flattering.

The most relevant passages from the Book [28] were:

[i] Two days later, The Sun ran another interview with Thomas, who this time threatened that he might show up unannounced if he didn’t hear from Meghan. “I want to see my daughter. I’m thinking about it,” he said. “I don’t care whether she is pissed off at me”.

[ii] It’s sad that it’s got to this point,” he continued. “I’m sorry it’s come to this. Yes, some of it is my fault. But I’ve already made it clear that I’m paying for this for the rest of my life”.

[iii] Anyone else spreading falsehoods would have been easier to discredit. But this was Meghan’s father. Thomas had cut himself off from the Palace completely and was consulting only with Samantha by this point. Meanwhile, writers began penning editorials about the many ways in which the Palace had mismanaged the whole affair with the Markle family. Thomas put the Palace and Meghan in a no-win situation.

[iv] Unlike Harry, who often scoured the press and checked out some of the royal correspondents’ Twitter accounts, Meghan tried to avoid her press. Still, diligent communications staffers and friends contacted her when anything came out that was especially heated or litigious, so she was apprised of most of the hurtful commentary.

[v] One of her closest friends said a heartbroken Meghan “wanted to repair the relationship.” Despite the many humiliations she had suffered, as summer came to a close, Meghan made one final effort to communicate with her father in the form of a five-page letter.

[vi] “Daddy, it is with a heavy heart that I write this, not understanding why you have chosen to take this path, turning a blind eye to the pain you’re causing,” she wrote. “Your actions have broken my heart into a million pieces, not simply because you have manufactured such unnecessary and unwarranted pain, but by making the choice to not tell the truth as you are puppeteered in this. Something I will never understand.”

[vii] Meghan pleaded with her father in writing: “If you love me, as you tell the press you do, please stop. Please allow us to live our lives in peace. Please stop lying, please stop creating so much pain, please stop exploiting my relationship with my husband.”

[viii] Thomas carried his daughter’s handwritten letter in its FedEx envelope in his briefcase for months, not sharing it with the media because it showed the many discrepancies in his tabloid revelations. He replied with his own four-page letter, in which he suggested a path forward, toward a reconciliation.

[ix] The best way they were going to get past everything, he wrote in a reply letter, would be to stage a photo op for the press where himself, Meghan, and Harry are together and happy.

[x] Meghan couldn’t believe it. “I’m devastated,” she confessed to a friend. “My father’s clearly been fully corrupted.”

[xi] “It is so painful for her because she was so dutiful. Giving him money. Trying to give him whatever help he needed,” a confidant said. “She will always feel devastated by what he’s done. Always, but at the same time, she has a lot of sympathy for him. Because he never went knocking on the press’s door. He was silent for almost two years. Then they just sort of whittled him down. Bombarding him every day. Moving in next door to his house. He couldn’t escape it. So now, it’s just like he’s so far gone”.

[xii] She didn’t reach out again. Instead, Meghan put up what her father described in one of the many interviews he gave following their written exchange as a “wall of silence”.

The judge’s reasoning at first instance

The trial judge regarded the following 7 principles relevant to the grant of summary judgment [31]:

i) The court must consider whether the [defendant] has a “realistic” as opposed to a “fanciful” prospect of success;

ii) A “realistic” [defence] is one that carries some degree of conviction. This means a claim that is more than merely arguable …

iii) In reaching its conclusion the court must not conduct a “mini-trial” …

iv) This does not mean that the court must take at face value and without analysis everything that a [defendant] says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents …

v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial …;

vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case …;

vii) On the other hand, it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of … successfully defending the claim against him … Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: …

legal principles regarding misuse of private information

The Court at first instance set out the legal principles as:

  • the court must, in a privacy claim against the media, ensure that it properly reconciles the competing rights under the ECHR: article 8(1) requires the state to respect a person’s “private and family life … and [her] correspondence”, and article 10(1) “guarantees the right to transmit and receive information and ideas without state interference” [33].
  • both rights are qualified, so that interferences are justified only if they are prescribed by law, and are necessary and proportionate in pursuit of one of the legitimate aims identified in articles 8(2) and 10(2) [33].
  • “[h]ere, on each side of the equation, the legitimate aim for consideration is “the protection of the rights of others” [33].
  • there is a two-stage test for the tort of misuse of private information in domestic law by reference to ZXC v. Bloomberg LP [2020] EWCA Civ 611 [2020] 3 WLR 838 (“ZXC“) at [40-48] and [103-109] and Sicri v. Associated Newspapers Ltd [2020] EWHC 3541 (QB) [2021] 4 WLR 3 (“Sicri“) at [63-74], [111-119], and [120-122] as [34]:
    • Stage one, whether the claimant enjoyed a reasonable expectation of privacy in respect of the information in question which involves:
      • asking whether a reasonable person, placed in the same position as the claimant and faced with the same publicity, would feel substantial offence.
      • omething of a private nature that is worthy of protection. In some cases, the answer will be obvious;
      • a broad objective assessment of all the circumstances of the case including:

(1) the attributes of the claimant,

(2) the nature of the activity in which the claimant was engaged,

(3) the place at which it was happening,

(4) the nature and purpose of the intrusion,

(5) the absence of consent and whether it was known or could be inferred,

(6) the effect on the claimant and

(7) the circumstances in which and the purposes for which the information came into the hands of the publisher

(“the Murray factors”).

      • the Court must have regard to whether the information, or similar information about the claimant, is in the public domain, or is about to become available to the public
    • Stage two, whether in all the circumstances the privacy rights of the claimant must yield to the imperatives of the freedom of expression enjoyed by publishers and their audiences [31] with:
      • the competing rights being both qualified and neither having precedence
      • the Court must focus intensely on the comparative importance of the specific rights being claimed in the particular case;
        • assess the justifications for interfering with each right;
        • balance them, applying a proportionality test.
        • have regard to the extent to which it is or would be in the public interest for the material to be published.
      • the decisive factor is an assessment of the contribution which the publication of the relevant information would make to a debate of general interest.
      • weighing the following factors:
        • the subject-matter,
        • how well-known the claimant is,
        • the claimant’s prior conduct, and
        • editorial latitude.
      • When examining the demands of free speech, the court should:
        • be slow to interfere in respect of matters of technique, form and detail;
        • defer, to the extent appropriate on the facts, to the professional expertise and judgment of journalists and editors.
  • where the defendant publisher was bound by the Editors’ Code of Conduct (the Code) enforced by the Independent Press Standards Organisation the Court was obliged to have regard to it.

The Court at first instance applying the principle to the facts

Stage one analysis

The Court stated:

 “[t]he claimant will fail on the issue, and the defendant will succeed, only if the court concludes that the information at issue and/or the surrounding circumstances were such that it would be unreasonable for the claimant to expect the defendant to treat the information as private and not for publication or – putting it another way – that the reasonable person of ordinary sensibilities placed in the position of the claimant would not feel substantial offence at the disclosure in question”. [37]

  • the defence had not set out any case which, assuming it to be true, would provide a reasonable basis for finding that there was, at any material time, no reasonable expectation of privacy [38],
  • the defendant had no realistic prospect of successfully defending this issue at trial.
  • there was no real prospect of the court concluding after a trial that, at the time the Articles were published or later, the contents of the Letter were not private, or that the claimant did not enjoy a reasonable expectation that they would remain private.
  • the following factors were plain and obvious and pointed to a reasonable expectation of privacy:
    • none of the detailed contents of the Letter had entered the public domain.
    • the claimant was a public figure, who had a high public profile, and about whom much was written and published,
    • the activity she was engaged upon in writing the Letter was not an aspect of her public role, but a communication to her father about his behaviour,
    • she did his activity in a private letter sent by courier to him alone,
    • the “intrusion” involved the publication of much of the Letter over four pages of a popular newspaper and online to a very large readership,
    • there was no consent,
    • the unwanted disclosure was likely to cause the claimant at least some distress in the context [39].
  •  the fact that the information was given to the defendant by the claimant’s father made it necessary for him to consider 6 aspects in more detail being [39]:
    1. the claimant’s status and role,
    2. whether the Letter or its contents were private in nature,
    3. the character and location of the recipient,
    4. the public domain,
    5. other disclosures by the claimant and
    6. the claimant’s intentions.
  • the judge concluded:
    • that the facts relied upon to show the claimant’s conduct and familial relationships were subject to public scrutiny could not lead to the conclusion that the claimant did not have any reasonable expectation of privacy in the contents of the Letter.
    • that the facts pleaded by Associated Newspapers did not support the conclusion that the claimant had no right to expect that the contents of her Letter would be treated as private and would not be published [41].
    • that the nature of the contents of the Letter related to the claimant’s family life, so that article 8 was engaged. The Letter contained her deepest and most private thoughts and feelings.  Associated Newspapers was incapable alleging that the claimant had no right to expect that the contents of her Letter would be treated as private as:
      • it was not a business letter.
      • it was delivered only to Mr Markle.
      • the majority of what was published was about the claimant’s own behaviour and feelings.
      • what information related to Mr Markle did not relate to him alone [42].
    • Mr Markle’s  right to tell his own life story did not override the claimant’s right to keep the contents of her Letter private.
    • the information showed that there was relatively little in the Letter that Mr Markle could claim was shared experience, engaging his privacy rights [42].
  • neither the claimant’s knowledge that Mr Markle was likely to disclose the Letter to the media, nor the fact that US law made publication lawful, was capable of defeating the claimant’s case that objectively she had a reasonable expectation of privacy [43]
  • as to whether the Letter was in the public domain, Associated Newspapers’ pleaded case fell short of alleging actual disclosure [44].
  • while public domain disclosures of similar information might weaken a reasonable expectation of privacy it was fanciful to suppose that any of the disclosures relied upon placed so much relevant information about these matters in the public domain that the claimant lost any right to privacy in the contents of the Letter [45].
  • allegations that the claimant wrote the Letter either intending to disclose it or knowing disclosure to be very likely did not rebut the claim to a reasonable expectation of privacy. The claimant had no need to prove her intention to keep the Letter private in order to establish that she had a reasonable expectation of privacy [46].

Stage two analysi

The judge framed the issues as whether the interference with:

(i) the claimant’s reasonable expectation of privacy involved in publishing the Articles was necessary and proportionate in pursuit of the legitimate aim of protecting the rights of others, and

(ii) freedom of expression represented by a finding of liability was necessary and proportionate in pursuit of the legitimate aim of protecting the rights of the claimant [48].

He concluded there was no real prospect of the court “striking the balance against the claimant and in favour of the defendant and its readers” because:

  • citing Lord Hoffmann in Campbell v. MGN Ltd [2004] 2 AC 457 (Campbell), where he said that [49]:

“[a] person may attract or even seek publicity about some aspects of his or her life without creating any public interest in the publication of personal information about other matters”.

  •  factors  a court would not attach great significance in the balancing exercise [50]:

(i) that the People Article was authorised by the claimant, and that she passed information about the contents of the Letter to friends and to the Authors,

(ii) the fact and content of disclosures made to the Authors for the purposes of the Book, and

(iii) the inference that the claimant was ready and willing to publicise details of her own private life and did not object to publicity about her, so long as it was favourable [50].

  • the court should take into account the Strasbourg jurisprudence that

“[a]rticles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well-known that person might be, cannot be deemed to contribute to any debate of general interest in society” (see Dupate v. Latvia Application 18068/11, CE:ECHR:2020:1119JUD001806811, 19 November 2020 at [51]).[51]

  • the real issue on this part of the case was whether the Articles might be justifiable for the purposes of correcting the record or, to adopt the language of the Code [52]:

“preventing the public from being misled”.

  • Campbell was the highest authority for the proposition that the disclosure of otherwise private information may be justified if the claimant has herself misled the public, and the disclosure is necessary for and proportionate to the purpose of putting things right [53].
  • The Court had also to take account of editorial latitude
  •  the defence about the People Article being one-sided and misleading and depicting Mr Markle as having acted unreasonably and unlovingly from the week before the wedding was entirely hopeless [54].
  • the defence that the People Article falsely stated, to the claimant’s knowledge, that Mr Markle had refused to get into the car that arrived to take him to the airport for the wedding did not provide a rational or proportionate reason for disclosure of the Letter.
  • the defence about the People Article’s coverage of Mr Markle’s allegedly false claims as to his dealings with his daughter being one-sided, misleading and/or untrue were confused and did not afford a reasonable basis for justifying the disclosure [55].
  • the defence alleging that the Letter was misdescribed in the People Article as a loving letter aimed at repairing the relationship, when it was no such thing & it was therefore “necessary, proper and in the public interest to publish the true and full story concerning the Letter and the response to it” was not capable of justifying the disclosure, and there was no real prospect of the defence succeeding [56].
  • the inaccuracy of the People Article’s account of the Letter had been overstated [57].
  • the only tenable justification for the interference with the claimant’s reasonable expectation of privacy was to correct some inaccuracies in the People Article about the Letter stating [58]:

“[o]n an objective review of the Articles in the light of the surrounding circumstances, the inescapable conclusion is that [save to a very limited extent] the disclosures made were not a necessary or proportionate means of serving that purpose. For the most part they did not serve that purpose at all. Taken as a whole the disclosures were manifestly excessive and hence unlawful”. There was no prospect that a different judgment would be reached after a trial: “[t]he interference with freedom of expression which those conclusions represent [was] a necessary and proportionate means of pursuing the legitimate aim of protecting the claimant’s privacy”.

DECISION

The court admitted new evidence which the court regarded as being directed to the drafting of the Letter and to what the claimant knew about the contacts between the Kensington Palace Communications Team and the Authors of the Book rather than any of the central issues in the appeal.  The court found that the fact that the Duchess permitted her staff to meet with the Authors was of no consequence to what had to be decided [69].

The nature of the attack issue: Did the judge mistakenly fail to recognise the significance and importance of the People Article’s attack on Mr Markle?

The issue at the heart of Associated Newspapers’ factual appeal was:

  • that the judge focused on Mr Markle’s dealings with the press, rather than on the attack that the People Article had mounted upon him.
  • had the judge realised the significance of that attack, he would have realised that Mr Markle was fully entitled to respond to it in the public domain [72].
  • the Letter was a central part of the attack, and Mr Markle could not effectively and publicly respond to it without disclosing the contents of the Letter. Merely giving his side of the story was not enough.
  • that Mr Markle

(i) cold-shouldered his daughter at the time of her wedding, which was the most important point in her life,

(ii) lied about her daughter shutting him out, and

(iii) ignored her pleas for reconciliation in a loving letter, to which he responded in a cynical and self-interested way. These attacks were all made in the context of the Duchess being portrayed as always dutiful and as supporting Mr Markle with incredible generosity [73].

The Court found that while the judge did not quote extensively from the People Article that does not mean that he had not understood its full import. The judge’s  treatment of the stage two issues focused on the misleading and attacking nature of the People Article and the consequent damage to Mr Markle’s reputation and that he dealt specifically with the allegations in Associated Newspaper’s defence about Mr Markle’s right to reply to the People Article [74].

3. The reasonable expectation of privacy issue: Did the judge adopt a flawed analysis of the factors undermining the Duchess’s reasonable expectation of privacy?

The appellant suggested that undermining features could have been advanced to reduce the extent of the privacy that the Duchess might reasonably expect in the Letter in particular that:

  • “the extent of the claimant’s dealings with the Authors of the Book and People magazine could not be properly addressed summarily” and
  • “fresh evidence after summary judgment bears out this complaint” [80].

The Appellant submitted that as a result the judge should have taken the letter from Addleshaw Goddard dated 21 December 2020 as an indication that such evidence would become available.  The court regarded the  judgment as having dealt with  each of the Murray factors and each of the points relied upon to undermine the privacy in the Letter.  The court agreed with the trial judge[‘s findings that while there was a triable issue as to whether Authors were given a copy of the Letter that was not relevant in determining whether there was reasonable expectation of privacy, It did not matter how the quotations got into the Book.  All that mattered was the timing and extent of publication which was not enough to defeat the claim. The court disagreed with the Defendants’ analysis that proving further dealings between the claimant and the Authors and People magazine, before or even after publication of the Articles, abrogated her reasonable expectation of privacy in the detailed contents of the Letter.

The court stated that:

(a) the reasonable expectation of privacy question is binary, and

(b) that if the claimant had put the contents of the Letter into the public domain, that might have had the effect of destroying her reasonable expectation of privacy. But she did not do so before the Articles and while the Authors were given a copy that was of no consequence for the purposes of the public domain question.

ISSUE

The matter will now be remitted to the High Court, where Lord Justice Warby will determine how the Duchess is to be compensated. She is not seeking damages but an account of profits. Regarding costs, Associated had previously made an interim payment of £450,000 to the Duchess to reimburse part of her costs. The final sum including the costs of the appeal  is likely to be significant.

The Court of Appeal’s decision was decided on  narrow grounds because the appeal itself was a narrow one. Sir Geoffrey Vos made that clear.  The key ground of appeal was that  judgment should not have been given without a trial.

Associated’s argument that the Duchess intended the letter to be public was rejected because it was not able to prove that would occur.  The court was quite critical of the speculation that was relied upon as evidence.

The Court rejected the claimed rights of Thomas Markle to publish the letter because he had been so badly wronged by People magazine’s report.  The Court of Appeal regarded the publication disproportionate to the supposed ill.

Publication of private letters and papers have long received legal protection. The Australian jurisprudence is grounded almost completely on equitable breach of confidence principles.  The balancing Act undertaken by the Courts in the UK, as between Articles 8 and 10 of the Human Rights Act are not undertaken in Australia, at least in such a detailed way.

The Court of Appeal decision and the decision of first instance is each a useful guide regarding framing a case in protecting private communications.  Care needs to be taken in relying too heavily on the detail and the authorities.  The UK jurisprudence is framed by both the UK Human Rights Act but also the development of the case law which recognises a tort of privacy.  The Australian Courts are markedly reluctant in developing the law so significantly, preferring to have the legislature create such an action.  Unfortunately the legislature has failed to do so.  Conservative Governments are resistant to such a development and Labour Governments have been markedly timid in this area.  The result, inertia. 

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