The Meghan Markle privacy victory versus the Mail on Sunday underlines an important lesson for the UK media.
Today privacy is a far bigger peril for publishers than libel.
The Mail on Sunday will now face a massive costs bill (likely to be in seven figures) aside from the damages payment, which is due to be set next month.
The Mail on Sunday argued that Meghan’s father, Thomas, had a right to correct what he saw as a misleading description which appeared in People magazine in the US of a letter she sent to him.
But for the judge this came nowhere near to the public interest justification he was looking for. And in any case, the record could have been corrected without full disclosure of the letter. So the Mail on Sunday’s actions were, he believes, excessive.
Privacy trials are few and far between in the UK because, as Max Mosley found when he sued the News of the World, even when you win you kind of lose.
The Sussexes will be financially out of pocket and reporting of the case turned into an extended and far more detailed invasion of privacy than the original story. But for them, litigation has served its purpose in terms of curbing further reporting of their activities.
So what are the main lessons from the case for journalists and editors?
1) In the eyes of the law family members have a duty of confidence to each other and their own right to freedom of expression does not trump the right to privacy of spouses, parents and siblings. So be careful disclosing private details about relationships where one of those involved has a reasonable expectation of privacy and they have not sanctioned disclosure.
2) With privacy, a big factor remains the likelihood of those involved to sue. Harry and Meghan have succeeded in ensuring that an alarm will go off in the brain of every Fleet Street night lawyer when their names appear in copy as they have shown themselves to be highly litigious.
3) Thomas Markle argued that he wanted to have his say and correct the record after the letter’s existence was initially disclosed by friends of Meghan to People magazine in the US. This defence might have worked had the MoS stuck to reporting only what was needed to correct the record. But in the words of the judge:
“The claimant had a reasonable expectation that the contents of the letter would remain private. The Mail Articles interfered with that reasonable expectation.
“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
So keep disclosures proportionate to what is needed to tell the story. Judges take a dim view when publishers include gratuitous detail when it comes to privacy.
This was the same point the Mirror came unstuck on when, under then-editor Piers Morgan, it pictured Naomi Campbell leaving a Narcotics Anonymous meeting in 2002. The House of Lords ruled that the Mirror was right to report that Campbell had deceived the public when saying she did not take drugs, but that publication of the picture was excessive.
4) As ever, when it comes to privacy, publishers need to ask themselves: Does the potential claimant have a reasonable expectation of privacy? Is there a public interest in overriding their right to privacy? If the public interest isn’t nailed on (such as exposure of wrongdoing or deceptive behaviour) then we should think hard about whether to hit ‘publish’.
5) The judge also held that reproduction of the Markle letter was a breach of her copyright as the author of the letter. For journalists writing stories based on leaked documents, this underlines the need to be cautious and to consider reporting the contents of the document rather than reproducing it in full.
Picture: Jeremy Selwyn/Pool via Reuters