Ask a lawyer: the Duchess of Sussex sues Mail on Sunday

Oct 07, 2019

Written By Karen Holden

Karen Holden, the founder of A City Law Firm, weighs in on the recent legal action proposed by Meghan Markle against the press.

It has been widely reported in the press that Meghan Markle has issued proceedings in the High Court to protect the privacy of a letter which she wrote to her father, who is said to be estranged from the Duchess. Legal proceedings against the Mail on Sunday’s owner were announced on October 1. Since then, Prince Harry has also announced that he will join a group action against the Mirror and the Sun due to alleged phone hacking.

When legal proceedings started last Tuesday, Prince Harry released a statement about the press intrusion that his wife has been suffering from during their relationship. Harry also has compared the treatment of his wife in the media to that of his mother, the late Princess Diana, stating that he believes history is now repeating itself with Meghan receiving a considerable amount of negative press.

Meghan’s lawyers—the libel law firm Schillings—have filed legal papers to state that the publication of the letter in the Mail on Sunday is a breach of the Duchess’s rights in terms of a copyright claim in accordance with section 30 of the Copyright, Designs and Patents Act 1988 and an infringement of privacy claim under the new Data Protection Act 2018.

In a press release, the Duchess’ lawyers have said legal action has commenced due to 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.”

The statement continues: “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”.

There has been a mixed view from the press. Some commentators have expressed support for the Duchess’s actions; others have been less supportive, believing that this has been an attack on the media.

My firm fully supports the Duke and Duchess of Sussex in their legal battle with the Mail on Sunday. Data privacy and protection of a persons’ letters—and indeed private information in general—is really important and should be upheld by the press. Private data should not be published about a person if there has been no explicit consent given in accordance with the General Data Protection Regulations (GDPR) and the new Data Protection Act 2018 (DPA). False and derogatory statements cause reputational damage which can lead to financial loss, but beyond that, they can also have huge personal and private implications in terms of such personal intrusion.

The Duchess also has rights to bring a claim under Article 8 of the Human Rights Act: a right for respect for private and family life, which will be weighed against Article 10 concerning freedom of information.

Together, the GDPR and DPA have installed a higher level of privacy laws. All companies are now required to demonstrate a high level of responsibility in how they look after personal data. Companies need to show that they combat the misuse of data and put security measures in place.

It appears that the Duchess is within her legal rights to take action for this breach of privacy and breach of copyright for the letter in question (if the letter is protected by this). The Mail on Sunday has made it clear that it intends to fight the lawsuit, stating: “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.”

Only time will tell as to if the Duchess will be successful with this privacy case. There have already been reports of calling her father as a witness in the case, which is likely to create more interest among the media for whom she has been a focus since marrying Prince Harry last year.

This case may lead the way with the protection of peoples’ privacy and personal data, or it may not if the letter was already public knowledge of some kind. But if the claim is successful, it will certainly assist with building case law around the new Data Protection Act 2018.

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