Have Associated Newspapers made a Royal error publishing Megan Markle’s private letter?

Meghan Markle, Her Royal Highness, the Duchess of Sussex is suing the Mail on Sunday and its parent company Associated Newspapers, after they published a private letter from Meghan to her father earlier this year.

In a press release, the lawyers for The Duchess of Sussex said that they have taken legal action over the “intrusive and unlawful publication of a private letter written by the Duchess of Sussex, which is part of a campaign by this media group to publish false and deliberately derogatory stories about her, as well as her husband. Given the refusal of Associated Newspapers to resolve this issue satisfactorily, we have issued proceedings to redress this breach of privacy, infringement of copyright and the aforementioned media agenda”.

Her Royal Katness
Image: G Travels

Associated Newspapers have reportedly state that they will defend the case: “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.”

Whether you are interested in the Royals or not, this case is a juicy one simply on account of the number of potential claims - copyright infringement, breach of moral rights, defamation, Misuse of Private Information, and breach of data protection rights. Here are some initial thoughts:

Copyright in Letters

Copyright protects original literary works and this also includes letters. The owner of a piece of work is usually the person who created it, in this case the writer of the letter. The copyright in the content of the letter therefore belongs to the writer of the letter, although the physical letter belongs to the recipient. This means that in order to share the content of a letter, Associated Newspapers would have required permission from Meghan, unless they can benefit from one of the copyright defences.
For example, if the use for the purpose of criticism, review or quotation, or for the purpose of reporting current events under section 30 of the Copyright, Designs and Patents Act 1988.

If Associated Newspapers wanted to argue that they benefited from criticism, review or quotation they would have to meet the criteria, which includes that the work had already been made available to the public, and therefore unlikely to apply to a private letter.

The exception for reporting current events does not explicitly require that the material already be available to the public, presumably this is to account for breaking news. However, it is a fair dealing exception and therefore requires that the use was fair. When considering if a use is fair, a court would take into account if the work had already been published, or if it was confidential. It is unlikely that use of confidential material would be considered fair unless there was a legitimate and continuing public interest clearly demonstrated, for example “leaked documents” with a clear public interest.

Readers may remember the case of His Royal Highness the Prince of Wales in 2006 (EWCA Civ 1776), where he also took action against Associated Newspapers after they published extracts from his diary. The Prince of Wales also brought an action for copyright infringement and breach of privacy. In relation to copyright, it was found that the Prince of Wales was the copyright owner and that the reproduction of the diary was an infringement of that copyright. Associated Newspapers argued that they benefited from the copyright exception of news reporting. However, the court found that the quotations from the journal had been chosen for the purpose of reporting on the revelation of the contents of the journal as itself an event of interest and not for the purpose of reporting on current events.

Moral Rights and Defamation

In the press release from the lawyers acting for the Duchess of Sussex, they claim that Associated Newspapers published "false and deliberately derogatory stories". In the press release from Prince Harry, he adds that the letter was published in an intentionally "destructive manner...by strategically omitting selected paragraphs, specific sentences, and even singular words..." Associated Newspapers have stated that they "categorically deny that the duchess's letter was edited in any way that changed its meaning."

If they did edit the letter, however, this could give rise to claims under moral rights. In particular, the author of a work has the right to object to derogatory treatment of their work. According to section 80(2) of the CDPA 1988, this includes adding to or deleting from a work, as well as alteration or adaptation which amounts to distortion or mutilation of the work, or is otherwise prejudicial to the honour or reputation of the author. 

In addition, this would open up the opportunity for a claim in defamation. If they letter was unedited then it cannot be defamation since the contents was true. However, if the information was manipulated, as the Royals argue, to deliberately mislead the public to the derogatory effect Markle, a claim would be possible.  

Privacy and Data Protection 

Balancing skills required
Image: Tommy Hemmert Olesen

In the statement it suggests that The Duchess will also bring claims of breach of her Article 8 right for respect for private and family life, home and correspondence (European Convention on Human Rights). In the context of publishing private information, this would be weighed against Article 10 right to freedom of expression and information. In the UK this would be brought under the common law action for Misuse of Private Information which provides the framework for balancing individual privacy rights and the freedom of the press. The requirements for this action include 1) the information was private, 2) the receiver of the information knew, or ought to have known, that the information would reasonably be regarded as private, and 3) the information was used without authorisation to the detriment of the party communicating it (see Campbell v MGN [2004] UKHL 22). If it is established that the information was private, the court then consider whether, in the circumstances, the interest of the owner of the private information must yield to he right of freedom of expression conferred on the publisher by Article 10. This would be decided on the circumstances of the case and it is not valid to suggest that public figures should expect less privacy as a justification for an intrusion on their private lives (Eady J in Mosley v NGN [2008] EWHC 1777).

In the UK the Data Protection Act 2018 (the UK’s implementation of the GDPR) provides protection for the processing of personal data. Processing includes collecting, recording, storing, using, analysing, combining, disclosing or deleting it. Personal data is any information relating to a natural person who can be directly or indirectly identified by that data. So, if it can be shown that the letter is personal data and that Associated Newspapers processed that data, then The Duchess could argue that it was processed without consent and therefore contrary to data protection laws. 

Post GDPR protected post
Image: Loïc GERBAUD

Perhaps Associated Newspapers will rebut with an argument that these breaches of privacy and data protection were necessary for the public interest, which can apply for example if it supports or promotes democratic engagement. However, just because something is interesting to [some of] the public, does not mean that it is in the public interest. Public interest requires a higher level of need, in order to justify the breach of the individual’s human rights.  

In the 2006 case, the Prince of Wales also argued that the information in his diary was confidential and therefore protected under Article 8. Associated Newspapers argued that the publication of the diary was in the public interest and permitted under Article 10. The Judge agreed with the Prince of Wales that “the right to be able to commit his private thoughts to writing and keep them private, the more so as he is inescapably a public figure who is subject to constant and intense media interest…[The Prince of Wales] is as much entitled to enjoy confidentiality for his private thoughts as an aspect of his own ‘human autonomy and dignity’ as is any other.”

Although a letter and a diary are slightly different, in that a letter was intended to be read by the recipient and a diary is usually intended to be entirely private, it is likely that they would be treated the same in the circumstances of being published without permission. 

Therefore, it seems that publishing a letter without permission would likely be an infringement of copyright. There is also a case to answer for the claims for breach of privacy and data protection. Additionally, if Associated Newspapers if edited the letter there could also be an argument for breach of moral rights and defamation. We eagerly await the outcome of this controversial case, one thing we can say for sure is that once it is completed we will need to go and update our textbooks!