Case Summary and Outcome

On February 11, 2021, the High Court of Justice, Chancery Division (Court), granted summary judgment against the defendant in relation to the misuse of private information for publishing a letter sent by the claimant to her father. The claimant, who is a well-known actress and the Duchess of Sussex, sent a letter to her father three months after her wedding. The existence of the letter first became public in an article published by People magazine. Believing that his image on the basis of the letter had been misrepresented, the claimant’s father provided a copy of the letter to the defendant. The defendant published large sections of the letter in articles published in the Mail on Sunday and MailOnline. Based on the reasonable expectation of privacy, the claimant argued that her private information had been misused. The defendant refuted the claims arguing that the reasonable expectation of privacy had been diluted on the basis of various stated grounds. The Court rejected the defendant’s arguments noting that the claimant had a reasonable expectation that the contents of the letter would remain private and that the disclosures in the articles were “manifestly excessive and hence unlawful”. The Court subsequently ordered the the Mail on Sunday to print a front-page statement saying the claimant had won the case and print further notice about the outcome in its inside pages. The Mail Online was also ordered to publish notice of the claimant’s victory for a week.

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Facts

The claimant is a well-known actress, Meghan Markle. She is also well known as the Duchess of Sussex, and wife of HRH Prince Henry of Wales, the Duke of Sussex (Prince Harry). The couple were married on May 19, 2018. The relationship of the claimant with her father, Thomas Markle, was difficult at the time. The claimant and her husband were concerned to ensure that the arrangements for the wedding remained confidential. In view of that, they asked Thomas not to engage with the media at all. A few days before the marriage, the Mail on Sunday published a front-page story on Thomas staging photos with the paparazzi, which was corroborated with CCTV footage. Thomas apologized to the claimant over a text. He later suffered a heart attack, due to which he couldn’t attend the wedding. However, even after the wedding, he continued to engage with the media speaking about his relationship with the claimant.

On August 27, 2018, the claimant sent her father a letter through FedEx for it to be delivered personally. In the letter, the Claimant wrote about the hardships her father’s actions of engaging with the press before and after her marriage has caused to her, how she has cared and assisted him financially, and how he had been ignoring her calls. The claimant ended the letter by requesting him to “stop exploiting [her] relationship with [her] husband and to “stop taking bait from the press”. In September 2018, Thomas sent a letter in reply. He suggested getting a family photo “for the whole world to see” and then “maybe some of the press will shut up”.

The existence of the letter became public for the first time on February 6, 2019 when it was mentioned in an article published in the US magazine People. The article was based on a series of interviews with a few friends of the claimant who wanted to correct the record and defend the claimant from the harmful publicity. In one of the paragraphs of the article, a longtime friend of the claimant gave an account of the events between the claimant and her father prior to her marriage. It was during this that the letter and its reply by Thomas was referred to. The longtime friend also told about the claimant’s feelings for her father’s reply stating, “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…”.

Having read the article published in People, Thomas decided to correct the misrepresentation by the articles of his image and of the letters between him and the claimant. Accordingly, he reached out to Caroline Graham of the Mail on Sunday, and the paper “respected [his] wish to publish extracts from [the letter]”. Thus, large parts of the claimant’s letter were published by Associated Newspapers Limited on February 10, 2019 in the Mail on Sunday and MailOnline. Before the publication, the defendant did not make any contact with the claimant in relation to the proposed content. The article was published on 2-page spreads with a front page trailer in the hardcopy edition under the heading of “World Exclusive”. The article published parts of the claimant’s letter under its own headlines with her father’s response in a “blob” beneath. The online article additionally reported opinions of two handwriting experts who analysed the claimant’s letter to reveal insights into her character to note that she was a “narcissistic showman whose self-control is wavering”.

A letter of claim was sent on February 14, 2019 complaining of a breach of the claimant’s privacy, her data protection rights, and her copyright. Following correspondence, the claim was issued on September 29, 2019 [para 61]. The claimant applied to “strike out the defences to the claims in misuse of private information and/or for summary judgment on that claim” [para. 9].

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Decision Overview

Justice Mark Warby delivered the judgment of the Court.

The primary issue before the Court was if the defendant had misused the claimant’s private information.

For this, the Court applied a two-stage test. At the first stage, the Court analyzed whether the claimant enjoyed “a reasonable expectation that the contents of the letter were private and would remain so” [paras 30 and 64]. For the determination, the Court relied on the Murray factors for a “broad objective assessment of all the circumstances of the case”. These factors are, “(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” [Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481 [36]] [para 30].

At the second stage, the Court looked into the balancing of the competing rights involved. On the one hand, Article 8(1) of the Convention requires the state to respect a person’s private and family rights and her correspondence. On the other hand, Article 10(1) of the Convention guarantees the right to transmit and receive information without state interference. The Court noted that both the rights are qualified and can be curtailed to protect the rights of the others. Accordingly, the Court was required to assess the justification for interference with each right and balance them by applying the proportionality test, with due regard to the public interest in the publication of the material [para 31].

Broadly put, the claimant argued that the contents of the letter disclosed her intimate thoughts and feelings about her private and family life. These were personal matters, and not of legitimate public interest. Accordingly, she enjoyed a reasonable expectation that the contents would remain private. Thus, the act of publishing the contents of the letter was a misuse of her private information. [para 4]

Denying the claim, the defendants maintained that the contents of the letter were not private or confidential as alleged, and that the claimant had no reasonable expectation of privacy. Further, the reasonable expectation of privacy was diluted on the following grounds (i) the fact that the claimant was a high ranking member of the Royal family and the public had a legitimate interest in the activities of the family, (ii) her knowledge that Thomas was likely to disclose the letter to the media, (iii) the fact that publication of the content of the letter was lawful in the US, (iv) her own conduct of intending, causing and authorizing publicity of the letter and her relationship with her father, and (v) publication of information about the letter. In any case, the defendant argued, that the article published in People gave a misleading account of her relationship, and the disclosure of the contents of the letter was justified to protect the rights and interests of Thomas and the public at large. [paras 6 and 7]

The Court rejected that the claimant did not have any reasonable expectation of privacy and that the defendant had any realistic prospect of successfully defending this issue at trial.

The First Stage

The Court firstly noted that none of the detailed contents of the letter were disclosed to the public prior to the Mail articles. Secondly, the Court noted that there is no room for serious debate on some aspects of the Murray factors, when assessed objectively, and stated the following: “(1) The claimant was a prominent member of the Royal family, and in that sense a public figure, who had a high public profile, and about whom much had been and continued to be written and published; this is an important feature of the background and the circumstances but (2) the nature of the “activity” in which she had engaged was not an aspect of her public role or functions; she was communicating to her father about his behaviour, its impact on her, her feelings about it, and her wishes for the future; and (3) she was doing this in a letter sent to him alone, privately, by means of a courier service. (4) The “intrusion” involved the publication of much, if not most, of the information in the letter by way of sensational revelations over four pages of a popular newspaper and online, to a very large readership; and that, in broad terms, was the purpose of the “intrusion”. (5) There was no consent, and it is beyond dispute that this was known to or could have been inferred by Thomas and the defendant. (6) The unwanted disclosure was likely to cause the claimant at least some distress, especially as it was done with the co-operation of her father, and in the context of a detailed and critical response by him to the content of the letter. (7) The information was given to the defendant by the claimant’s father”. [paras 68 and 69]

Further, the Court considered the following aspects of the Murray factors in detail: [paras 70-93]

1. The claimant’s status and role (Factor 1): The Court accepted that as a public figure she must accept a degree of intrusion that others would not have to bear. The Court, however, also noted that a public figure does not give up his/her right to a private life by joining a select group. The Court doubted the defendant’s assertion of subjecting the claimant’s familial relationships to public scrutiny, as “it cannot be said without qualification that the claimant’s relationship with her father was a matter of public interest”. Further, the Court rejected the proposition that the Palace making a statement about the matters renders them to be of public interest. [paras 71 and 72]
2. Were the letter or its contents private in nature (Factor 2): The Court noted that the letter fell within the ambit of “correspondence” under Article 8 as it contained matter relating to the “family life” of the claimant and her father. The letter had the claimant’s feelings about her father’s behaviour, how it affected her, and her wishes for the future. Such correspondence is presumptively private in nature [Maccaba v Liechtenstein [2004] EWHC 1579 (QB), [2005] EMLR 6 [4]] [para 74]. Further, although the information contained in the letter was related to Thomas, it was not related to him alone. It was the claimant’s account of his conduct. The Court admitted that Thomas had the right to give his own account of the events in his own life, however, it is not unqualified. The right of the claimant restricts the use of the contents of the unpublished letter as a means of doing so [para. 76(3)]. In any case, the Court noted that the letter had relatively little that Thomas could claim as shared experiences to engage his privacy rights, and it would be untenable to maintain that the claimant has no privacy rights in respect of the little information the letter had about Thomas.
3. The character and location of the recipient (Factors 2 and 3): The Court rejected the defendant’s arguments that the claimant’s expectation of privacy was undermined by the fact that she believed her father was likely to disclose the content of the letters to the third party, and that the publication of the contents of such letter is lawful under US laws. As per the Court, the position of likely disclosure is contradictory to the position taken by Thomas prior to the article published in People, as reported by the defendant itself. In any case, “a person’s rights against another are not defeated by the prospect that those rights may be ignored or violated” [para. 78]. Further, while the publication would have been lawful in the US, the matter before the Court was under English law and a person does not lose their right to object to a specific disclosure on the grounds that it could have been lawfully made.
4. Public domain: The defendant claimed that the information about the existence of the letter and its description was available in the public domain prior to its disclosure before publication in the Mail. The defendant based its argument on the reference in the article published in People and a biography of the claimant and her husband published under the title “Finding Freedom – Harry and Meghan and the Making of a Modern Royal Family”. Noting that for the public domain issue, the timing of publication is key, the Court rejected this argument by the defendant. The Court also differentiated “disclosure of information about the existence of the letter and a description of its contents” from “disclosure of the detailed content” [para. 82]. In any case, the book relied on by the defendant did not appear until August 2020. When it did, it disclosed only what was disclosed in the Mail articles.
5. Other disclosures or alleged disclosures by the claimant: The defendant argued that disclosure of information in a given zone of a person’s private life dilutes the claim of privacy in respect of other information in the same zone. Rejecting the argument, the Court noted that the theory had been discredited and a person has autonomy to decide which aspect of his/her life the person wants to disclose, when, and to whom [Re Angela Roddy (A Minor) [2003] EWHC 2927 (Fam) [2004] EMLR 8 [36] (Munby P), Campbell v MGN Ltd [2004] 2 AC 457 [51] (Lord Hoffmann), McKennitt v Ash [2008] QB 73 at [55] (Buxton LJ), and R (Wood) v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 [2010] 1 WLR 123 [21] (Laws LJ)].
6. The claimant’s intentions: Based on facts such as the letter being carefully handwritten and the claimant keeping a copy, and a claim that the letter was disclosed to the communications team at Kensington Palace, the defendant argued that it was the claimant’s intention to publicize the letter. However, the Court stated that “this line of defense has no sound basis in law” [para. 88]. Although the Murray factors talk about consent to the disclosure complained of, they do not make any mention of an intention to publish. Further, there is no other authority that suggests that intention to publish would be problematic for the claim in the present case.

In light of the above-mentioned analysis, the Court concluded that the claimant was bound to win at trial on the issues of the first stage.

The Second Stage

The Court noted two issues under this stage: (i) whether the publication of the Mail articles was proportionate in pursuit of the legitimate aim of protecting the rights of others, and (ii) whether the interference with the freedom of expression of the defendant is proportionate in pursuit of the legitimate aim of protecting the rights of the claimant.

The defendant relied on the above-mentioned factors and arguments to claim that the privacy interest was slight and the claimant’s expectation of privacy was compromised. However, the Court noted that there was “no real prospect of the court striking the balance against the claimant and in favour of the defendant and its readers” [para. 97]. The articles were merely published to satisfy public curiosity about the claimant, and were in no way capable of contributing to a debate of public or general interest [para. 103].

The Court further noted that the publication may be justified if the purpose was to correct the record or prevent the public from being misled. In this regard, the defendant took multiple lines of arguments. The defendant firstly justified the publication on the basis of the fact that the article published in People was misleading about the letter. Further, Thomas maintained that he was being misrepresented and misinterpreted, and the defendant was entitled to give him a platform to represent his side of the story [para. 109]. The defendant also claimed that a few facts published in the People article were false (for example, Thomas’s refusal to get in the car which arrived to pick him up for the airport) [para. 113].

The Court rejected the arguments furthered by the defendant. It was stated that the above-mentioned reasons would not render disclosing the contents of the letter or any part of it as proportionate. The Court noted that the Mail articles did not directly assert that any aspect of the People article was false. Even when a small portion of the published article provided a misleading account, it would have been reasonable to publish a proportionate response in form of a summary (without disclosing the content of the letter) to the same audience in self-defense. In any case, it would be unnecessary to determine what Thomas intended, given that the People article had accurately summarized what Thomas had said. Further, the Court failed to understand the basis of constructing the claimant’s psychological profile using her handwriting and publishing it, and its rational connection with the People article. In all, the Court considered the publication of contents of the letter in the Mail articles to be a disproportionate response.

Given that the Court had the full text of the People article, the letter, and the Mail articles, which can be interpreted as well as a judge would do after a trial, the Court stated that “there is no need for a trial to establish the relevant facts”. As per the Court, the issue was one of assessment and balancing which could be done at the present stage of proceedings.

In all, the Court noted that the claimant had a reasonable expectation that the contents of the letter would remain private. The Mail articles interfered with the reasonable expectation of privacy and disclosed contents that were not at all necessary or proportionate means for serving the purpose of correcting some inaccuracies about the letter contained in the People article. Taken as a whole the disclosures were “manifestly excessive and hence unlawful” [para. 128]. Thus, the Court concluded by holding that there was no prospect of a different judgment in the trial. However, the Court did not find any useful purpose in striking out any of the defense, which might be relevant to damages. Accordingly, the Court held that “there will be summary judgment for the claimant on the claim for misuse of private information” [para. 170].

On March 5, 2021 the Court ordered the Mail on Sunday to print a front-page statement saying the claimant had won the case and print further notice about the outcome in its inside pages. The Mail Online was also ordered to publish notice of the claimant’s victory for a week.

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