The battle between Meghan Markle, the Duchess of Sussex, and the Mail on Sunday continues. In the latest development, Mr Justice Warby has granted Meghan an interim injunction to stop the Mail on Sunday from publishing the names of Meghan’s friends who gave anonymous interviews about Meghan to the American magazine People and one of whom spoke about a letter Meghan had sent to her father and which is at the centre of these Court proceedings.
As a reminder, the Duchess of Sussex has sued the Mail on Sunday in respect of five articles that were published in the Mail on Sunday and/or Mail Online on 10 February 2019 relating to Meghan’s relationship with her father Thomas Markle and a private letter Meghan had sent to her father. Three causes of action are relied on by the Duchess of Sussex: misuse of private information, breach of duty under GDPR and infringement of copyright.
Most recently in this case, the Mail on Sunday had succeeded in having parts of Meghan’s case struck out. For more information please read our previous blog.
Since parts of Meghan’s claim were struck out, the Mail on Sunday made various requests for information from the Duchess of Sussex. One of its requests, on 3 June 2020, was that Meghan should identify the friends who had provided interviews to the American magazine People. Meghan’s legal representatives responded by identifying the five individuals in a confidential schedule.
The Mail on Sunday then widely published the contents of Meghan’s response and on 6 July 2020 subsequently wrote to Meghan’s legal representatives stating that the use of the confidential schedule was illegitimate and that in order to keep the identities of her friends confidential, Meghan would need to apply to the Court for an injunction. It is for this reason that the Duchess of Sussex then applied to the Court for an injunction to keep her friends' identities secret.
In granting a temporary injunction to keep the identities of Meghan’s five friends confidential, Mr Justice Warby had to consider the competing demands of open justice and confidentiality. The Judge found that the parties’ previous conduct in publishing aspects of the case to the media to suit their respective aims was relevant. Despite the newspaper’s argument that disclosing the friends’ names was necessary in order to uphold open justice, the Judge found that the Mail on Sunday’s articles on this matter had very little to do with enabling public scrutiny of the legal process and that the newspaper’s reporting was not designed to enhance the understanding of the legal process.
The Judge went on to say that publicly identifying Meghan’s five friends would have “very limited if any value” at this stage to the principle of open justice. He also found that there was a credible argument that if Meghan’s friends were identified, this could cause harm to them. In addition, Mr Justice Warby felt that it was important to uphold the agreement that Meghan’s friends made with People Magazine and their reasonable expectation that they would remain anonymous. Moreover, given the intense public interest in this case, the Judge held that Meghan’s friends should be protected from the “glare of publicity”, at least for the time being, in order to prevent any pressure that they, as potential witnesses in the case, may face and in order to maintain fairness and due process in the litigation.
Whilst Mr Justice Warby made clear that the position on confidentiality may change as the case progresses, this ruling sets an important precedent with respect to the confidentiality of individuals who may have to give evidence as witnesses in a claim.
The litigation continues and Mr Justice Warby stated in his latest Judgment that he wants this case to “move forward at a greater pace”. It will be interesting to see how this case progresses and whether, as reported in some newspaper outlets, this case will go to trial early next year.
Our specialist intellectual property disputes solicitors routinely advise on a broad range of disputes relating to copyright, trademarks, patents and design rights along with matters relating to data protection and confidential information. The team is also highly skilled at advising on reputation management issues and are regularly instructed by clients from multiple sectors in the UK and internationally. If you need advice on intellectual property matters, please do not hesitate to contact a member of the team today.
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