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October 3, 2019updated 30 Sep 2022 8:24am

Meghan Markle vs Mail on Sunday will be ‘privacy case of the century’, says media law expert

By PA Medialawyer and Press Gazette

The Duchess of Sussex’s legal action will be the “privacy case of the century” if it goes to trial, a media law expert has said.

Meghan Markle is suing the Mail on Sunday after it published a letter she wrote to her father expressing her anguish at their estrangement, which she claims was a breach of her privacy and copyright.

The Duke of Sussex launched an unprecedented attack against the British tabloid press for a “ruthless campaign” against his wife, as the legal action was announced on Tuesday.

In a highly personal and scathing statement, Prince Harry said some newspapers had “vilified her almost daily for the past nine months” and claimed they had published “lie after lie” at Meghan’s expense simply because she was out of public view on maternity leave.

It has been reported that Harry did not consult senior members of the royal family over the statement, which he wrote himself and published on a website created especially.

He is also reported to have ignored advice from his senior aides not to publish the attack on the press, which coincided with the couple’s tour of South Africa. Royal sources told The Times the timing was “unfortunate”.

David Banks, a journalist and expert in media law, told the PA news agency a trial would go global, could cost Harry and Meghan millions, and could actually lead to more revelations about the duchess’ relationship with her estranged father Thomas Markle.

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If the case is not settled beforehand, both Harry and Meghan could even appear in court to give evidence, just as singer Sir Cliff Richard did when he sued the BBC over its coverage of the police search of his home.

Banks said: “Cliff Richard gave quite telling evidence about the effect this had on him and the intrusive nature of the coverage.

“It would be very powerful if Meghan does or Harry does as well. It is very unusual for royals to do. I can’t think of a case in living memory.”

He added: “If it comes to court, it could be the privacy case of the century.”

In February, the Mail on Sunday published extracts of Meghan’s handwritten letter to her father.

In the run up to her wedding to Harry in May last year, Meghan was caught up in controversy after her father allegedly staged paparazzi photographs of himself and then began commenting regularly to entertainment website TMZ about his contact with his daughter.

Law firm Schillings, representing the duchess, said Meghan had filed a High Court claim against the paper and its parent company Associated Newspapers over the alleged misuse of private information, infringement of copyright and breach of the Data Protection Act 2018.

Banks said: “This is going to be global if it gets to trial. I cannot think of another privacy case of this magnitude with figures at the centre of it that are the level of the Royal Family.

“There have been plenty of celebrity privacy cases in the past but they are nowhere near as significant and of interest to the public.”

Meghan and Harry, who yesterday concluded their now-overshadowed ten-day official tour to southern Africa with their baby son Archie, are likely to be braced for a “very uncomfortable” exploration of the duchess’s relationship with her father, Banks added.

“It is one of the drawbacks of a privacy action for the claimant. The very thing that you want to remain private becomes the topic of a hugely publicised High Court legal action,” he said.

“There is the distinct possibility that other aspects of Meghan’s relationship with her father and why the Mail on Sunday felt that was in the public interest to explore in their journalism might be at the heart of this legal action which could make things very uncomfortable and even more revelatory for the duke and duchess.

“But clearly, they’ve taken the action. That must be something they’re prepared for.”

In his statement, Harry referenced his mother Diana, Princess of Wales, who was a tabloid newspaper staple and died in a Paris car crash while being pursued by the paparazzi.

“Though this action may not be the safe one, it is the right one,” he said.

“Because my deepest fear is history repeating itself. I’ve seen what happens when someone I love is commoditised to the point that they are no longer treated or seen as a real person.

“I lost my mother and now I watch my wife falling victim to the same powerful forces.”

Harry said about his wife: “I have been a silent witness to her private suffering for too long. To stand back and do nothing would be contrary to everything we believe in.”

The couple’s high-profile overseas trip has received favourable coverage, but the duke said these positive stories expose the “double standards of this specific press pack”.

He explained that the alleged unlawful publication of the private letter was done in “an intentionally destructive manner” to “manipulate” readers.

He claimed readers were misled by “strategically omitting select paragraphs, specific sentences, and even singular words to mask the lies they had perpetuated for over a year”.

The case is being privately funded by the Sussexes and any proceeds from damages will be donated to an anti-bullying charity.

A Mail on Sunday spokesperson said: “The Mail on Sunday stands by the story it published and will be defending this case vigorously.

“Specifically, we categorically deny that the duchess’s letter was edited in any way that changed its meaning.”

Once a claim is filed with the High Court, the defendant generally acknowledges service of the legal action before issuing a defence.

It usually takes many months before a trial takes place and there may be a series of hearings ahead of a trial to deal with preliminary legal issues.

The parties may settle the claim out of court at any stage of the proceedings and, if they do, there is likely to be a statement made in open court which tends to include an apology from the defendant.

The High Court has dealt with a number of high-profile privacy cases in recent years, including Sir Cliff’s action against the BBC and the ongoing litigation over alleged phone hacking by the publishers of the Mirror and the now-defunct News of the World.

PR consultant Mark Borkowski told PA the duke had issued an “open declaration of war” to the British press.

“They are being a little bit too open about what they think about the media,” he added.

“The royals normally keep the media at arm’s length but this is not an arm’s length move.

“Harry is determined not to play the media game. There is no charm left, this is an open declaration of war.

“He has drawn a line in the sand and that line has been crossed. There will be a lot of people who support him, but he will also be losing a lot of friends.”

Borkowski said Harry’s statement reveals a lot about his media team and his relationship with the British press.

“A lot of it has an American focus. There is an American accent to their media relations, a type of celebrity Hollywood PR,” he said.

“There is not the same level of cooperation with the press that we are used to from the royals.”

He added: “This statement shows that the young royals do not have a huge amount of respect for the Fourth Estate.”

It is not the first time Harry has criticised media coverage of Meghan.

In November 2016, he confirmed he was dating the US actress and lashed out at the “wave of abuse and harassment” she had faced from the media.

Picture: Reuters/Siphiwe Sibeko

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