Next steps for the duchess

And has she really left news organisations in manacles?

“We are very surprised by today’s summary judgment,” Associated Newspapers said yesterday.

Really? I wasn’t. Although it would have been presumptuous and foolhardy of me to predict the result, I think I made my expectations for the Duchess of Sussex’s claims against the publisher of the Mail on Sunday clear enough from the concluding sentences of my preview last week:

Ultimately, say the publishers, a court must decide how to balance the duchess’s right to privacy against their freedom of expression. That is certainly true.

But the courts may decide that nothing the newspaper could now establish will swing the balance in its favour.

Or, as Mr Justice Warby put it when he granted the duchess’s application for summary judgment yesterday:

There can be plain and obvious cases in privacy and copyright, as there are in other fields of law. So long as the lens is not obscured by fog or dust, it may be possible to see clearly that a case has only one plausible outcome, and a trial is superfluous.

This would have come as no surprise to anyone who watched the hearing last month.

Privacy

This is how Warby summed up the duchess’s claim that the newspaper had breached her privacy in 2019 by publishing 585 words from a 1,250-word letter she had sent her father Thomas Markle six months earlier:

She says that the contents of the letter were private; this was correspondence about her private and family life, not her public profile or her work; the letter disclosed her intimate thoughts and feelings; these were personal matters, not matters of legitimate public interest; she enjoyed a reasonable expectation that the contents would remain private and not be published to the world at large by a national newspaper; the defendant’s conduct in publishing the contents of the letter was a misuse of her private information.

And this is how he tried to summarise the publisher’s defence:

Any privacy rights she had were

(a) limited, given the legitimate public interest in the activities of the Royal family and the claimant’s status as a “high-ranking member” of that family, and

(b) destroyed, weakened or compromised by

(i) her knowledge of her father’s propensity to speak to the media about their relationship,

(ii) the fact that publication of the existence and contents of the letter was lawful in the US,

(iii) her own conduct in causing, authorising, or intending publicity about the letter and/or her relationship with her father more generally, and/or

(iv) the publication of information about the letter.

In addition, the publishers argued, shortly before they published extracts from the duchess’s letter a US magazine called People had given

a misleading account of the father-daughter relationship, the letter and Mr Markle’s letter in response, such that (in all the circumstances) public disclosure of the contents of the letter in the Mail articles was justified to protect the rights and interests of Mr Markle and the public at large.

English privacy law, developed from past rulings and the human rights convention, sets a two-stage test:

  • Does the claimant have a reasonable expectation of privacy in the information?

  • Is the claimant’s expectation outweighed by the freedom of expression enjoyed by publishers and their audiences? Would publication be in the public interest?

The duchess began by claiming that the answer to the first question was “yes”. Her letter was “self-evidently” private. Only she could decide whether, when and how to publish it.

That was challenged by Associated Newspapers in its original written defence. They argued:

as a general principle, a recipient of a letter is not obliged to keep its existence or contents private, unless there are special circumstances, such as a mutual understanding between sender and recipient that the contents of a letter should be kept private.

But that argument did not stand up to scrutiny in court. As Warby politely said:

This way of putting it has not been pressed, and rightly so. It is at odds with a large body of authority, in this jurisdiction and in Strasbourg, which identifies a general rule in relation to personal correspondence of this kind which is to the opposite effect… “One’s correspondence with others …. is presumptively private in nature.”

After reviewing other arguments, Warby concluded that the duchess would be bound to establish at a full hearing that her letter was private.

Next, he had to balance that finding against the publisher’s freedom of expression. The answer was obvious as soon as Warby asked the question:

Was the interference with the claimant’s reasonable expectation of privacy involved in publishing the five pages of print coverage and the corresponding online reporting complained of necessary and proportionate in pursuit of the legitimate aim of protecting the rights of others?

And this was his answer:

The People article did portray the letter in a way that was inaccurate, and that would have justified some steps to ensure the true position was made known to those who had been misled. But it is obviously wrong for the defendant to suggest that the inaccuracies in the 25 words of the People article… made it necessary and proportionate for it to publish the bulk of the contents of the letter in the Mail on Sunday and MailOnline… without notice to the claimant.

On privacy, the judge concluded:

Taken as a whole, the disclosures were manifestly excessive and hence unlawful. There is no prospect that a different judgment would be reached after a trial. The interference with freedom of expression which those conclusions represent is a necessary and proportionate means of pursuing the legitimate aim of protecting the claimant’s privacy.

Copyright

Copyright is a statutory property right in “original literary works”, including letters. A copyright owner is entitled to keep her work to herself. Anyone who publishes a substantial part of a work infringes the the writer’s copyright unless the publisher can establish a defence — such as reporting current events.

This is how Warby summarised the duchess’s copyright claim:

The claimant says… the letter is an original literary work in which copyright subsists; she is the author of that work, and of a draft she created on her phone (“the electronic draft”); and the Mail articles infringed her copyright by reproducing in a material form, and issuing and communicating to the public, copies of a substantial part of the electronic draft and/or the letter.

In response, the publisher claimed there was no copyright in “a recitation of pre-existing facts”. This seemed “a remarkable argument for a news publisher to want to advance,” said Warby before rejecting it. He was satisfied that the draft was sufficiently original to confer copyright on whoever wrote it.

But who was that? Might it include Jason Knauf and three colleagues on the Kensington Palace communications team who were said to have been involved in the draft? The duchess’s lawyer said this was speculative and Micawberite.1 And Warby agreed:

The defendant’s factual and legal case on this issue both seem to me to occupy the shadowland between improbability and unreality. The case is contingent, inferential and imprecise. It cannot be described as convincing, and seems improbable. It lacks any direct evidence to support it, and it is far from clear that any such evidence will become available. It is not possible to envisage a court concluding that Mr Knauf’s contribution to the work as a whole was more than modest. The suggestion that his contribution generated a separate copyright, as opposed to a joint one is, in my judgment at the very outer margins of what is realistic.

But, said the judge it was not fanciful. “Since the defendant so wishes, these issues must go forward to trial”.

But that would be only on the issue of whether the duchess shared copyright with others. “There is no room for doubt that the defendant’s conduct involved an infringement of copyright in the electronic draft of which the claimant was the owner or, at worst, a co-owner.”

So this was Warby’s conclusion on copyright:

The claimant is entitled to summary judgment on the issues of subsistence and infringement. She is bound to prove that she was the or an owner of the or a copyright in the literary form of the electronic draft which copyright was infringed by the defendant, and the defences advanced would be bound to fail. There remain for resolution by way of a trial the issues — of minor significance in the overall context — as to whether the claimant was the sole author or whether the involvement of Mr Knauf — whatever it proves to have been — made him a co-author; and if so, what consequences that has as on the extent of the infringement of which the claimant may complain, and on the remedies available.

What next?

  1. The duchess has been granted summary judgment on her claim for misuse of private information and on the main issues in her copyright claim. She has won those claims without the need to give evidence in court and face cross-examination by the Mail’s lawyers. She must be entitled to damages and costs.

  2. The publishers could now insist on a hearing to decide whether her copyright was shared. She clearly wants to avoid this.

  3. She has also brought a claim against Associated Newspapers under data protection legislation. There was no application for summary judgment on that claim. Having won her case through other routes, we can assume she wants to drop the data protection claim.

  4. One would expect the publishers to offer the duchess a sum of damages and costs to cover her success on point 1.

  5. If they are going to drop point 2, they might expect her, in exchange, to accept a reduction in her damages.

  6. The same applies to point 3. The publishers would say they have already spent time and money preparing to defend the data protection claim. She would say that she was bound to win that claim anyway. The defendants would say that a win would not have increased her overall damages. She may now be wondering why she was advised to bring that part of the claim.

  7. Associated Newspapers are “considering the judgement’s contents and will decide in due course whether to lodge an appeal”.

  8. Negotiations between the two sides will presumably begin next week. The duchess is bound to want an apology in addition to damages and costs. The publishers may want to keep the size of the damages confidential.

  9. A hearing has been arranged for 2 March. If there is no agreement, the judge will give directions for future hearings.

  10. It’s not clear whether the hearing next month will be before Warby, who has recently been promoted to the Court of Appeal. If there’s no agreement on damages, he would be the best person to set a figure. If there are to be further hearings, they might come before Mr Justice Nicklin — Warby’s successor as judge in charge of the High Court’s media and communications list.

Manacles on the media?

And where does this ruling leave news organisations? “You are putting manacles on the media and that is going to be one of the issues from this going forward,” said the media lawyer Mark Stephens. “And it is unclear when public interest comes in to allow you to publish.”

Well, that’s why news organisations employ lawyers. As I argue in the Telegraph today, this is just the latest in a series of cases over the past 20 years where privacy claims have been upheld. Editors may have been brought up to think in terms of libel but they must surely have grasped the significance of privacy by now.

As a first-instance judgment rather than an appeal ruling, Warby’s decision reinforces the law without changing it. There will still be cases where a newspaper’s freedom of expression outweighs a letter-writer’s right to privacy — especially if the writer is a public figure. But this was not one of them.

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1

Micawber was the character in Dickens’s David Copperfield who was always hoping that something would turn up.