Privacy, Data Protection and Retention
Barr v. American Assoc. of Political Consultants
Closed Mixed Outcome
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
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.
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].
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  EWCA Civ 446,  Ch 481 ] [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]
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.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case involved deciding upon two conflicting rights. On the given set of facts, the Court balanced the defendant’s freedom of expression in favour of the claimant’s right to privacy on the basis of the proportionality test. This case also highlights the level of control a person can exercise in relation to the disclosure of their personal information and gave primacy to individual autonomy. The Court has further clarified that intention to publish private information does not dilute the reasonable expectation of privacy.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.