“It could be the privacy case of the century”: Meghan Markle vs the press

Feb 04, 2020

Written By Emma Finamore

With the Sussexes currently navigating their step back from royal duties, we take a look at their ongoing legal battle with the British press.

The royal family is – whether you support its existence or not – an institution rooted in tradition and adherence to long-established norms. But The Sussexes, also known as Meghan and Harry, are two of its members making it clear they intend to break with some of this custom. Cumulating in their recent decision to step away from royal duties entirely, these two are doing things their own way.

That goes for their relationship with the press too. Responding to what they see as unfair treatment crossing legal lines, Meghan and Harry recently announced they would each be suing the press. Meghan has launched a lawsuit against the Mail on Sunday—which published a letter she wrote to her estranged father—as well as its parent company DMG Media (formerly Associated Newspapers). In October, the pair spoke of the “relentless propaganda” they feel they’ve been subjected to, while Harry compared the treatment of Megan to that of his late mother Diana.

In his statement, Harry emphasised that he and Meghan believed in “media freedom and objective, truthful reporting” as a “cornerstone of democracy”. But he went on to say: “There is a human cost to this relentless propaganda, specifically when it is knowingly false and malicious, and though we have continued to put on a brave face—as so many of you can relate to—I cannot begin to describe how painful it has been.

“Because in today’s digital age, press fabrications are repurposed as truth across the globe. One day’s coverage is no longer tomorrow’s chip-paper. 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.”

It is not the first time Harry has taken on the press. Early on in his relationship with his wife, he complained to the BBC for broadcasting an image from a neo-Nazi social media site that called him a “race traitor” and depicted the royal with a gun pointed at his head. The complaint was rejected both internally by the BBC, and externally by broadcasting watchdog Ofcom, which ruled that the use of the image in a report about the activities of the group was in the public interest. But the BBC did apologise for not warning Harry in advance.

Fast forward to October 2018, when Harry accused the British tabloid press of waging a “ruthless” campaign against Meghan that had “escalated over the past year, throughout her pregnancy and while raising [their] newborn son.'' Harry said the more positive coverage of their African tour exposed “the double standards of this specific press pack that has vilified her almost daily for the past nine months. They have been able to create lie after lie at her expense simply because she has not been visible while on maternity leave. She is the same woman she was a year ago on our wedding day, just as she is the same woman you’ve seen on this Africa tour. For these select media, this is a game and one we have been unwilling to play from the start.”

The couple’s legal spokesperson said of the move to sue: “We have initiated legal proceedings against the Mail on Sunday, and its parent company Associated Newspapers, 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.”

Proceedings in the high court will focus on the misuse of private information—a handwritten letter Meghan sent to her estranged father—infringement of copyright and breach of General Data Protection Regulation (GDPR). Authors of letters retain ownership of the copyright even after the physical correspondence is in the possession of another individual. Pursuing legal action on this narrow basis also gives the royals a greater chance of success against DMG Media, which also owns the Daily Mail and MailOnline—both of which have also run a substantial number of stories on Meghan.

In October, 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 might actually lead to more revelations about the duchess’ relationship with her estranged father Thomas Markle. 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. If it comes to court, it could be the privacy case of the century.”

The GDPR explained

The mutually agreed General Data Protection Regulation (GDPR) came into force on 25 May 2018, and was designed to modernise laws that protect the personal information of individuals. It is a regulation in EU law on data protection and privacy for all individual citizens of the European Union (EU) and the European Economic Area (EEA).

Data protection rules across Europe were first created during the 1990s and had struggled to keep pace with rapid technological changes. GDPR alters how businesses and public sector organisations can handle the information of their customers. It also boosts the rights of individuals and gives them more control over their information.

In the full text of GDPR there are 99 articles setting out the rights of individuals and obligations placed on organisations covered by the regulation. There are eight rights for individuals, which include allowing people to have easier access to the data companies hold about them, a new fines regime and a clear responsibility for organisations to obtain the consent of people they collect information about.

The royals in court

Despite the Sussexs’ recent announcement regarding legal action—as well as their scathing rhetoric—this isn’t the first time the royals have taken the press to court.

Prince Harry

Earlier this year, Harry notched up a victory in the royal family's long-running battle with paparazzi photographers, securing a "substantial payout" from an agency which used a helicopter to take pictures inside a house he was renting. The paparazzi agency Splash News apologised, and a statement was read in court saying: "This matter concerns a claim for misuse of private information, breaches of The Duke's right to privacy under Article 8 ECHR and breaches of the General Data Protection Regulation ("GDPR") and Data Protection Act 2018 ("DPA")."

Kate Middleton

In 2017, Kate Middleton was awarded a payout of around £92,000 from a French magazine which published topless photographs of her.

The royal family sued Closer magazine after its French edition ran a series of photographs showing Kate and Prince William on holiday in southern France in 2012. Published under the headline, "Oh My God! The photos that will go round the world”, the magazine included several long-lens paparazzi shots showing Kate without her bikini top on at a chateau. The royals took a total of six photographers and magazine executives to court, demanding a payment for the invasion of their privacy.

“The incident was a serious breach of privacy, and their royal highnesses felt it essential to pursue all legal remedies,” a statement read, after the French court ruled in the royals’ favour. But a lawyer for Closer, Paul-Albert Iweins, said the damages award was in line with previous payouts but that the fines were “exaggerated considering it was a simple case of privacy”.

The Queen

The Queen herself has also taken legal action. In 2003 she won a court order stopping the Daily Mirror publishing further revelations about life in the royal household, which were being leaked to the press by a former employee.

The Queen, who cannot bring proceedings in her own court, instructed the Attorney General Lord Goldsmith to ask the judge to prevent further intrusions into the daily lives of the family, in a rare legal procedure previously used in 1990 against another employee.

A High Court judge agreed to a temporary injunction against the newspaper after lawyers instructed by Goldsmith argued that the newspaper and its reporter, who was employed as a footman, had breached the confidence of the royal family.

Justice Lewison granted the injunction, and expressly rejected the newspaper's argument that the material it was publishing was already in the public domain through books written by people such as Paul Burrell, a former royal butler.

The judge made his decision under "well established" contract law and said contractual rights could be an exception to the principle of freedom of expression under the Human Rights Act.

David Pannick QC told the court that the Queen was seeking an injunction because of the "flagrant breach" of a contractual obligation to maintain confidentiality. He said the breach by Ryan Parry, who was employed as a footman for two months from September, had resulted in "obvious and unjustified intrusions" into the private life of the Queen and other members of the Royal Household.

Right to privacy vs. free speech

Many of the legal issues surrounding the royals and media coverage revolve around the conflict between a right to privacy and a right to freedom of expression.

This delicate balance between a person's right to privacy and someone else's right to freedom of expression were set at odds when they were enshrined in the Human Rights Act, brought in by Tony Blair's Labour Government in 1998. The legislation, which came into force in October 2000, was introduced in order to incorporate the European Convention on Human Rights into UK law.

Under Article 8, the Human Rights Act states that everyone has the right to respect for their private and family life, their home and their correspondence.

But the law also guarantees everyone's right to freedom of expression, which allows them to hold opinions and receive and impart information and ideas without interference. Ever since the law was introduced, judges have been asked to rule on cases where the two competing principles have been at odds with one another.

The judgments in each of these legal challenges have helped form case law which has slowly tipped the balance ever more in favour of a person's right to privacy against the competing interests of a free press.

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