Meghan Markle wins privacy and copyright claims against Associated Newspapers

Posted: March 18, 2021

Case analysis: HRH The Duchess of Sussex v Associated Newspapers Limited

In a significant victory for the Duchess of Sussex, the High Court has granted summary judgment, ruling that she had a reasonable expectation of privacy in the contents of a private letter that she wrote to her father, and it was fanciful to think otherwise.[1] 

The court then rejected the publisher’s arguments that her right to privacy was outweighed by the interests of her father and the public.  While the Duchess is a public figure and the existence of the letter (and an allegedly misleading summary of its contents) had been made public in a US magazine, the judge held that extent of publication by Associated Newspapers was largely irrelevant to any legitimate aim, and the number of extracts published was wholly disproportionate. 

The High Court also ruled that the letter was an original copyright work of which Associated Newspapers had copied a substantial part.  The court again rejected the publisher’s reliance on the fair-dealing exception for the purpose of reporting current events, and/or that publication was justified in the public interest.  An issue remaining for trial is whether the Duchess was the sole author or a co-author of the letter, although the judge considered that of minor significance in the wider context of the claim. 

Comment

The judgment provides important guidance on both an individual’s reasonable expectation of privacy in something that the claimant’s leading Counsel submitted is ”self-evidently private”, but also on individuals’ rights to control their own privacy.  The judge noted that, in modern law, it is recognised that “the respect for individual autonomy that lies at the heart of Article 8” means that the “starting point is a person has the right to exercise close control over particular information about her private life: to decide whether to disclose anything about a given aspect of that life and, if so, what to disclose, when, to whom”.  An individual who actively seeks and invites publicity may have a reduced expectation of privacy, but “the analysis must be focused, not broad-brush”.

A key part of the judge’s reasoning was the extensiveness of publication of the letter, which the judge found was entirely disproportionate to any possible defence of public interest in terms of privacy law and, for copyright purposes, went far beyond both the relevant current event and any fair use.  Publishers should consider carefully what the relevant public interest and/or current event is and ensure that it has a connection to the information published, and that they only publish what is reasonably necessary to serve that purpose.

Finally, the court expressly rejected the contention that the focus on the competing rights involved means that these types of cases are not appropriate for summary judgment.  While this is a highly fact-specific analysis and the impact on future cases is yet to be seen, similar applications for early determination may become more common, leading to a decline in the number of cases proceeding to trial, which is already relatively small in this area of law.

Jessica Welch, Associate Solicitor and Dionne Clark, Trainee Solicitor, Simkins LLP

For our previous short report on the judgment, see here.

To read the full article, click here.  Written for Entertainment Law Review.


[1] [2021] EWHC 273 (Ch).