Meghan Markle Prevails on Privacy Claim Against UK Tabloid

Meghan Markle
Pool/Samir Hussein/WireImage

Meghan Markle has convinced a UK judge Mail on Sunday violated her privacy by publishing parts of a letter she wrote to her estranged father in 2018 and that the tabloid is liable for copyright infringement.

The Duchess of Sussex in September 2019 sued Associated Newspapers, owner of the tabloid, for misuse of private information and copyright infringement after it selectively published portions of what she had written.  The letter was first referenced in People and after that story was published, according to court documents, Thomas Markle gave Mail on Sunday a copy.

When the suit was filed, Markle's husband Prince Harry, Duke of Sussex, wrote a lengthy statement about why he was fed up with the British press bullying his wife. The couple also pledged to donate any damages they receive from the litigation to an anti-bullying charity.

In response the tabloid had argued Markle had no reasonable expectation of privacy with regard to the contents of the letter (in part, because she's a member of the royal family), that there was a public interest in publishing it because the People article was misleading and denied that it had infringed any copyright by reproducing parts of it. Justice Mark Warby wasn't convinced.

Warby on Thursday granted summary judgment in Markle's favor on nearly everything, but is leaving open the issue of copyright ownership for the purpose of establishing damages. Associated Newspapers had argued Markle may not be the sole owner and Warby finds enough substance in that argument to allow it to proceed to trial.

The rest of the decision, though, weighs heavily in Markle's favor. After outlining the strained father-daughter relationship, and events that contributed to it, he quotes both her letter and the reply to it. Warby also quotes the People article and agrees that its characterization of Markle's letter is inaccurate, and details the series of Mail on Sunday articles that prompted the suit.

Warby determined it would be "fanciful" to think Markle wouldn't win at trial on her privacy claim.

"The claimant had a reasonable expectation that the contents of the Letter would remain private. The Mail Articles interfered with that reasonable expectation," writes Warby. "The only tenable justification for any  such interference was to correct some inaccuracies about the Letter contained in the People Article. On an objective review of the Articles in the light of the surrounding circumstances, the inescapable conclusion is that, save to the very limited extent I have identified, the disclosures made were not a necessary or proportionate means of serving that purpose. For the most part they did not serve that purpose at all. Taken as a whole the disclosures were manifestly excessive and hence unlawful."

Warby continues, "I see no good reason not to enter summary judgment on liability, for damages and other remedies to be decided later. There are, indeed, compelling reasons not to allow this aspect of the case to go to trial. It has already consumed large amounts of resources, both private and public."

Markle's copyright infringement claim is more complicated. Markle originally composed the letter on her smartphone and it was later transcribed into a handwritten letter. It's the latter that was republished by Mail on Sunday, which argued that Jason Knauf, a member of the Kensington Palace royal communications team, "was involved in wording" the letter and therefore Markle isn't the sole creator.

"The defendant’s factual and legal case on this issue both seem to me to occupy the shadowland between improbability and unreality," writes Warby. But, for the purpose of establishing damages, he finds it's not quite "fanciful" enough to not go forward.

"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," writes Warby. "The claimant is entitled to summary judgment on the issues of subsistence and infringement. ... 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."

The full decision is posted below, and a summary is available here.

Markle, the Duchess of Sussex, on Thursday sent The Hollywood Reporter this statement in response to the decision:

“After two long years of pursuing litigation, I am grateful to the courts for holding Associated Newspapers and The Mail on Sunday to account for their illegal and dehumanizing practices. These tactics (and those of their sister publications MailOnline and the Daily Mail) are not new; in fact, they’ve been going on for far too long without consequence. For these outlets, it’s a game. For me and so many others, it’s real life, real relationships, and very real sadness. The damage they have done and continue to do runs deep.

The world needs reliable, fact-checked, high-quality news. What The Mail on Sunday and its partner publications do is the opposite. We all lose when misinformation sells more than truth, when moral exploitation sells more than decency, and when companies create their business model to profit from people’s pain. But for today, with this comprehensive win on both privacy and copyright, we have all won. We now know, and hope it creates legal precedent, that you cannot take somebody’s privacy and exploit it in a privacy case, as the defendant has blatantly done over the past two years.

I share this victory with each of you—because we all deserve justice and truth, and we all deserve better.

I particularly want to thank my husband, mom, and legal team, and especially Jenny Afia for her unrelenting support throughout this process.”