Friday, January 28, 2022

Meghan Markle: Mail on Sunday loses appeal in privacy case – decision explained

Associated Newspapers Ltd (ANL), publisher of the Daily Mail, The Mail on Sunday and MailOnline, on Sunday lost an appeal in its three-year legal battle against Meghan Markle, Duchess of Sussex, over the Mail on Mail. Letter written by the Duchess to her father Thomas Markle in August 2018.

The Duchess sued for copyright infringement and breach of privacy, arguing that the letter to her father was “private and personal.” High Court Judge Mr Justice Warby issued a summary judgment in February 2021 in favor of the Duchess, which upheld her claims of privacy and copyright infringement.

A brief judgment means that in this case the judge ruled that there was no need to go to trial to reach a determination. This is because ANL’s defense had no real chance of success.

The ANL was allowed to appeal and brought fresh evidence to support its argument that the matter should be heard. But the Court of Appeals has said that, even in light of the new evidence, Warby was right in delivering the summary decision, and therefore the Mail on Sunday was liable for copyright infringement and breach of privacy.

copyright infringement

Copyright protects things like writing—which, in this case, includes a letter. Copyright in the contents of the letter belongs to the person who wrote the letter – not the recipient. Using someone’s copyright-protected letter without their permission is copyright infringement, unless an exception applies.

The ANL argued that the letter’s use falls under a copyright exception, known as “fair dealing” for the purposes of reporting current events. But for this exception to apply, certain criteria must be met – including that the purpose of the use is to report current events and that the amount charged was reasonable.

The summary judgment found that the printing of the letter by mail on Sunday was done for the purpose of reporting its contents – which was not a current event. Warby also ruled that the amount of material from the paper published by the newspaper was too much to be fair and irrelevant and disproportionate for any legitimate reporting purpose.

Appealing its decision, ANL argued that Meghan’s father, Thomas Markle, wanted to publish the letter because he felt that an article published in the US by People magazine, featuring interviews with the Duchess’s friends, She was depicted as a “caretaker daughter”, with the intention being “olive branch” with the letter incorrect. But the court ruled that the content of the letter did not support this point, as it reinforced the points most people made against him in the article.

The court also disagreed with ANL’s contention that the contents of the letter were used in public interest. Public interest defense can be used to circumvent copyright enforcement in the name of free speech – but this only applies in special circumstances. It is very rare for this defense to justify copyright infringement, especially where even a fair dealing defense fails. Therefore, it is not surprising that the Sunday Mail also failed in this defence.

Mail on Sunday: The court ruled that the newspaper infringed on the Duchess of Sussex’s copyright and invaded her privacy.
EPA-EFE/Neil Hall

So the Court of Appeal ruled that none of these defenses enforced Warby’s ruling and upheld that the Mail on Sunday infringed Meghan Markle’s copyright in the contents of the letter when they published it.


The Duchess also sued ANL for the misuse of personal information. To make this claim, a claimant must demonstrate a “reasonable expectation of confidentiality.” ANL argued that Meghan thought the letter might have been leaked and therefore did not have a reasonable expectation of confidentiality in the contents of the letter.

To support this argument, it presented evidence from former Sussex communications secretary Jason Knauf, who claimed in a witness statement that the letter was written with the hope that it might become public.

But the Court of Appeal judges, Sir Geoffrey Vos, Dame Victoria Sharpe and Lord Justice Bean, upheld Warby’s decision to deliver a summary judgment, and ruled that the contents of the letter contained a “reasonable expectation of confidentiality” to the Duchess. “Those materials were personal, private and were not matters of legitimate public interest,” Vos, Master of the Roles, said in a statement read out aloud to the court.

The ANL also argued in its appeal that the Duchess had shared the letter with Omid Scobie and Caroline Durand, the authors of a book about the Duke and Duchess entitled Finding Freedom. To make this point, the ANL also relied on evidence from Knauf, who revealed that he had provided some of the information to the book’s authors with Meghan’s knowledge. This, the publisher argued, destroyed its reasonable expectation of confidentiality by putting the letter in the public domain.

But the court found that even though Meghan shared a quote from the letter with the book’s authors, she still had a reasonable expectation of privacy in the letter’s detailed content, so the Mail on Sunday violated Meghan’s privacy rights by publishing Was. its content.

After losing the case on appeal, on Sunday the Mail must do four things: 1) publish the correction and apology 2) pay the damages (likely in the form of a profit account) 3) destroy the copies of the letter in their possession 4. ) be subject to an injunction that prevents them from infringing Meghan’s copyright and privacy rights in the future.

It is not yet known whether the ANL will make another appeal to the UK Supreme Court. To do so, they must obtain permission from the Court of Appeal.

This article is republished from – The Conversation – Read the – original article.

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