The Duchess of Sussex v The Mail on Sunday – Part 2

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On 1 May 2020, High Court Judge Mr Justice Warby gave Judgment in favour of the Mail on Sunday in relation to parts of Meghan Markle’s claim against them.  The Mail on Sunday had sought to strike out some of the allegations in Meghan’s claim relating to misuse of private information and breach of data protection rights. 

As a reminder, Meghan has sued the Mail on Sunday in respect of five articles that were published in the Mail on Sunday and/or MailOnline on 10 February 2019 relating to Meghan’s relationship with her father Thomas Markle and a private letter Meghan 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.  Meghan was seeking damages, including aggravated damages, for misuse of private information and compensation under the GDPR.  She also claimed damages, including additional damages for flagrancy, for copyright infringement.  Other remedies claimed in addition or in the alternative included injunctive relief to restrain further publication, licensing, dissemination or processing of Meghan’s private information or copyright material and delivery up of copies of the letter Meghan sent to her father which were in the newspaper’s possession, power, custody or control.   

The newspaper has defended the claim on the basis that:

  • The letter Meghan sent to her father was not private and confidential;
  • Meghan had no expectation that the letter would remain private;
  • The publication of the letter was justified to protect the rights of freedom of expression enjoyed by the newspaper, its readers and Thomas Markle;
  • The processing of the personal data contained in the letter was not unlawful or unfair but was legitimate; and
  • The letter was not an original literary work or alternatively was of “very limited intellectual creation” and only a limited part of the letter was published.

During the hearing that took place on 24 April 2020, the newspaper targeted three aspects of Meghan’s case:

  1. Allegations that the newspaper had acted dishonestly and in bad faith;
  2. Allegations that the newspaper had deliberately dug up or stirred up conflict between Meghan and her father; and
  3. Allegations that Meghan was distressed by the newspaper’s “obvious agenda of publishing intrusive or offensive stores about her intended to portray her in a false and damaging light”.

It was the Mail on Sunday’s case that these allegations were irrelevant in law or inadequately particularised, or that it would be disproportionate to litigate these issues and therefore should be excluded from the scope of the case. 

Mr Justice Warby agreed that all three allegations as set out above should be struck from Meghan’s claim on the basis that these allegations were “irrelevant” to her claims for misuse of private information, breach of GDPR and infringement of copyright.  Mr Justice Warby also held that some of these allegations were inadequately detailed.  However, in a glimmer of hope for The Duchess of Sussex, Mr Justice Warby did highlight Meghan’s right to apply to the Court to amend her claim in order to try and re-introduce these allegations if the amendments complied with the applicable law and principles. 

Notwithstanding the fact that parts of the Duchess of Sussex’s claim have been struck out, her case against the Mail on Sunday continues on the basis of misuse of confidential information, breach of GDPR and infringement of copyright. 

In his Judgment, Mr Justice Warby has stated that “the challenge to the claimant’s case that the contents of the letter were private and confidential in nature might seem at first a little surprising… the court has protected the confidentiality of private correspondence since at least the late eighteenth century.  It is clearly established that, as a starting point, the contents of private letters are to be regarded as subject to a duty of confidentiality owed by the recipient to the writer”.  However, Mr Justice Warby has also recognised that there is legal authority that “correspondence is not categorically entitled to protection nor [that] its contents [are] ‘inherently private’.  The nature of the information contained in the correspondence will accordingly be relevant”.   

The Judge also accepted that the Duchess of Sussex’s case was similar to that of her father-in-law, the Prince of Wales, in his case against the Mail on Sunday.  That case also related to the Mail on Sunday reporting on and reproducing parts of the Prince of Wales’ travel journal of his visit to Hong Kong when it was handed over to China.  The Prince of Wales sued for breach of confidence and copyright infringement and was successful in his claim when both the High Court and the Court of Appeal held that the newspaper had no real prospect of successfully defending the claim.

We shall have to see how this case develops.  Although Meghan may be disappointed to have lost the first round of this battle, the view remains in the legal world that fundamentally her claim against the Mail on Sunday remains sound.  

Our specialist intellectual property disputes team routinely advises on a broad range of disputes relating to copyright along with other intellectual property disputes relating to trademarks, patents, confidential information and data protection.  The team is also highly skilled at advising on design rights and reputation management issues and are regularly instructed by clients from the arts, media, textile and clothing sectors in the UK and internationally.  If you need advice on copyright or other intellectual property infringements, please do not hesitate to contact a member of the team today.