In October 2019 the Duchess of Sussex, Meghan Markle launched a lawsuit against Associated Newspapers Limited (ANL) the parent company of the UK’s Mail on Sunday, for allegedly misusing her private information and breaching copyright laws.
Markle wrote a letter to her father, Thomas Markle in August of 2018, expressing her discomfort with his recent collaboration with the British press. The following February he shared a copy of the letter to ANL, who published substantial extracts in various tabloids throughout that month.
Meghan Markle’s claims:
- Misuse of private information: A person or party has a reasonable expectation of privacy concerning their personal information in England. It is considered “misuse” of private information if that party’s right to privacy outweighs the using of a third party’s right to freedom of expression under the Human Rights Act 1998.
- Copyright breach: Meghan Markle’s letter was an original literary work. She claimed that, as author of the letter, she owned the copyright which had been infringed by Mail on Sunday as they had printed a significant portion of her work without her consent.
Associated Newspapers Defence:
- Defence of fair dealing: This defence allows for lawful use or reproduction of work in England without needing permission from the copyright owner or infringing on their rights or interest.
- Defence of public interest: This is a defence that allows a defendant (ANL) that disclosed private or protected information to avoid liability by demonstrating that the public interest in disclosure of the information (in the letter), outweighs the public interest in nondisclosure.
The case
The Duchess’ legal team issued the High Court of Justice a summary judgement in February 2021, to determine whether there was need for a trial. High Court judge Justice Warby ruled that there was no need to go to trial due to ANL’s weak defence.
The defence argued that their use of the letter was a copyright exemption known as “fair dealing” (for the purpose of reporting current events). The summary judgement found that the Mail on Sunday printed the letter in order to report its contents – which was not a current event. Additionally, the amount of information published by the newspaper was determined to be too great to be ‘fair’, as well as being irrelevant and unrelated to any legitimate reporting purposes.
The Duchess also sued ANL for misuse of private information. The defence argued that she had expected the letter to be leaked while writing it and hence did not have a reasonable expectation of privacy. However, Judge Warby ruled that the Duchess did have a “reasonable expectation of privacy” in the contents of her letter and also disagreed with ANL’s defence of public interest.
Appealing both of these decisions, ANL argued that:
- Meghan Markle’s father wanted to publish the letter as he felt the article issued by People magazine “inaccurately” depicted the gesture as an “olive branch”. The court ruled that the letter’s contents did not support this.
- ANL also argued that the Duchess had shared the letter with authors of Finding Freedom, a book on the Sussexs. They argued that The Duchess’ plans to put the letter into public domain invalidated her reasonable expectation of privacy. The court found that even if the Duchess had shared a quote from the letter with the authors, she still had reasonable expectations of privacy.
In February 2021, Meghan Markle won this case. Having lost, the Mail on Sunday had to do four things:
- Pay The Duchess ￡1.3 million in damages, significantly more than the average ￡75,000 to￡125,000 for similar copyright or privacy cases
- Publish a correction and apology.
- Destroy any copies of the letter they have.
- Be subject to an injunction that stops them from infringing The Duchess’ copyright and privacy rights going forward.
Australian vs English copyright and privacy law:
The British Copyright Act 1911 was applied in Australia until the Australian Copyright Act 1968 was introduced. As of 2023, the 1968 Act has remained but it has been amended over time. Whereas, English copyright law is governed by the Copyright and Designs Patents Act 1988. So while both sets of copyright law are based on the same foundation, they have now evolved and contain small differences which set them apart.
Australian Privacy Law has similarly evolved since federation and is now governed by the Privacy Act 1988 which protects the handling of personal information. Australia also regulates privacy and protection through a combination of federal, state and territory laws. Comparatively, England has a comprehensive privacy and data protection framework known as the Data Protection Act 2018. This piece of legislation incorporates the General Data Protection Regulation (GDPR), a European Union regulation which maintains standards for privacy and is designed to give people greater control over their personal data.
Image supplied by Educa, <https://www.geteduca.com/gdpr/>.
This case serves as a reminder to media practitioners of the importance of discretion, ethical judgement and responsibility when reporting, specifically involving public figures. It emphasises the necessity of finding a balance between freedom of press and individual privacy rights. This has been a particularly popular and controversial topic since the death of Princess Diana in 1997, which involved a car accident when running from the press. While this case does not have a direct effect on Australian Privacy Law, it does reinforce important messages to media practitioners.
These messages include;
- Respect for private boundaries: Balance between freedom of the press and individual privacy rights.
- Verification before publication: Practitioners should ensure the accuracy of their reporting to reduce legal risks.
- Public interest considerations: Practitioners must consider whether there is a genuine public interest in publishing private or sensitive information. Simply having a story of interest to the public is not a sufficient defence if it involves invading someone’s privacy.
While this case did set important legal precedents it mainly served as a reminder of the existing legal framework governing privacy, media ethics, and data protection in England and around the world. The case also reinforced the notion that even royals and other public figures have a reasonable expectation of privacy.