Meghan Markle, the Duchess of Sussex, is litigious – multiple simultaneous actions against media attest to that. Her latest ‘win’, however, is a useful wake-up call for all journalists.
A pre-trial judgment against the publisher of the Mail on Sunday in the UK has provided an unequivocal marker on how editors should treat private correspondence that falls into their hands.
Sir Mark Warby last week allowed a strike out claim and found in favour of the Duchess in an action she brought against Associated Newspapers over publication of the contents of a hand-written letter she sent to her father. Mr Justice Warby was in absolutely no doubt about the contents of her deeply personal letter being revealed in a WORLD EXCLUSIVE in the London tabloid. “Taken as a whole,” the judge said, “the disclosures were manifestly excessive and hence unlawful”.
It ran across the front page and two double-page spreads, including not only lengthy quotations from the letter and rebuttal from Thomas Markle but also an analysis of the perfectly formed script (Markle is a trained calligrapher) that painted her as “ultra-cautious” but also “a showman and a narcissist”.
On one level we might view the case as an encounter between two British institutions that deserve each other, but Justice Warby has elevated the issue well above the royals getting their own back on the hated red tops.
He was the High Court judge in charge of the Media and Communications List but since hearing the case has moved to the Court of Appeal. His judgement provides us with a superbly reasoned guideline on which to judge the media’s rights and obligations over private correspondence that comes into their possession. The guidance is as valid for New Zealand journalists as it is for their British counterparts.
There are a number of issues addressed by the judge but at the core are competing principles of a public figure’s right to privacy versus freedom of expression and the public’s right to know. Editors often justify publication on the basis that public figures, particularly those who have sought publicity in the past, waive their right to privacy. They also argue that those who have been ‘wronged’ by another party have a right to rebut the claims. Justice Warby rightly pointed out that both of those arguments have their limits.
The Duchess sent the letter to her father by courier three months after her marriage to Prince Harry, which Thomas Markle (recovering from heart surgery) did not attend. Their relationship had been strained. Mr Markle gave a copy of the letter to a Mail journalist following publication of a critical article in People claiming to be sourced from five unnamed friends of the Duchess. The letter was mentioned but none of its content disclosed.
Meghan Markle’s claim was that the contents of the letter were about her private and family life, not her public profile or her work. It disclosed her intimate thoughts and feelings. They were personal matters, not matters of legitimate public interest and, as such, she enjoyed a reasonable expectation that the contents would remain private and not be published by a national newspaper.
Associated Newspapers defence was that she had no reasonable expectation of privacy, given the legitimate public interest in the activities of the Royal family and her status as a “high-ranking member”. It also said she expected the letter to be made public, given her father’s propensity to speak to the media about their relationship and that she had already discussed the letter with others – the sources of the People article that gave a misleading account of the father-daughter relationship that he had a right to redress. The publisher also argued that the contents of the letter could be lawfully published in the United States, but Justice Warby’s judgment tartly reminded the defence that the articles were published in the United Kingdom and were subject to British law, which was manifestly different.
He found resolutely in favour of the Duchess of Sussex, except on a claim of copyright which will be subject to a separate hearing.
In finding for the claimant he answered two questions put by her counsel in the course of the hearing: “Does the writer of a letter that is self-evidently private and sensitive have the right to decide whether, when, how and to what extent to publish its contents? Or does a newspaper have the right to publish those contents, without the prior consent or even knowledge of the writer?”
The reasons he set out for siding with the letter writer provide a checklist that journalists should consult before rushing to publication with the steamy love letters a public figure wrote to his paramour, or the love-hate outpourings of a distressed daughter.
- Does this relate to a public figure’s private life? “…she is indeed a public figure. She must accept a degree of intrusion that others would not have to bear. But it has long been established that a public figure does not, by joining that select group, give up her right to a private life, or open up every aspect of her private and family life or correspondence to examination in the press.”
- Is the letter, by its nature, private? “This was not a business letter, or one advancing a complaint to a politician about their public conduct or functions. It was a communication between family members with a single addressee. Precautions were taken to ensure that it was delivered only to him. It was, in short, a personal and private letter.”
- Does the content relate solely to the recipient? “The letter did contain information that related to Mr Markle (and some that related to others), but it was not information that related to him alone. In essence, the purpose of the letter was to explain how the claimant saw her father’s behaviour and its impact on her, and to express her feelings about that and her wishes for the future…It is, moreover, not an account that he accepts. In many respects, he disputes it. That is just one reason why it cannot realistically be separated out and categorised as information that ‘belongs’ to him and not to her.”
- Does the correspondence relate to shared experience? “…there is relatively little that Mr Markle could claim is shared experience, engaging his privacy rights [and right to disclose].
- Is privacy unreasonably affected by a right to redress? “it [cannot] be said that Mr Markle’s undoubted right to tell his own life story is unqualified, or that it defeats or overrides the claimant’s presumptive right to keep the contents of her letter private. Respect for that right of the claimant does not significantly impinge on Mr Markle’s entitlement to give his own account of events in his own life. It only restricts his right to use the contents of the unpublished letter as a means of doing so.”
- Does it matter that the recipient was likely to make the correspondence public? “…objectively speaking, she had a right to expect her father to keep the contents of the letter private. A person’s rights against another are not defeated by the prospect that those rights may be ignored or violated. A high level of risk-taking might be capable of affecting the assessment of damages, but does not excuse an intrusion into privacy.”
- Was the material already in the public domain? “The short point is that disclosure of information about the existence of the letter and a description of its contents [in the People article] is not at all the same thing as disclosure of the detailed content. The distinction between fact and detail is an obvious and well-established feature of this branch of the law, vividly illustrated by this case.”
The sum total of Justice Warby’s decision is that letters of an obviously private or family nature are not fair game for the media – irrespective of the identity of the author. There may be instances where publication is justified in the public interest, but this judgment sets a high bar – rightly so.
It is an important reminder that there are two parties (or more) involved in correspondence. The fact that one (in this case the recipient) is prepared to make it public is not a licence to publish. With private letters the views of the other party or parties, at the very least, need to be sought. And the reaction will be a good indicator of whether publication will be followed by a writ.
You can read the decision here: https://www.judiciary.uk/wp-content/uploads/2021/02/Duchess-of-Sussex-v-Associated-2021-EWCH-273-Ch.pdf