What can be learnt from Meghan Markle’s success in her privacy and copyright claims against the press?

The letter was reproduced in large parts by the Mail Online and the Mail on Sunday (together, “the Mail”) after having been published by the US magazine, People. There is also still an ongoing claim for breach of data protection law.

In the judgment handed down on 11 February 2021, the Duchess of Sussex was granted her applications for summary judgment on liability for misuse of private information and copyright infringement. The court considered the established common law tests for misuse of private information and copyright infringement claims. Below is a brief summary of the claims and the relevant decisions and opinions of the court.

Misuse of private information

The court applied the fairly recently established two stage test in finding that the Duchess of Sussex had a reasonable expectation of privacy regarding the letter and that the balance between this expectation and the press’ freedom of expression tipped in her favour in this instance. Taking these two stages in more detail:

1.     Reasonable expectation of privacy?

It is an established common law principle that public figures do not give up their rights to a private life or open up every aspect of their private and family life or correspondence to examination in the press. The court in this case felt that it could not be said without qualification that the Duchess of Sussex’s relationship with her father was a matter of public interest. The judgment states that even if this could be said, it would not necessarily mean that she had no privacy rights in relation to the details of a private letter.  The court decided that the letter and subject matter were private in nature.

The conclusion was that the Duchess of Sussex had a reasonable expectation that the contents of her letter would remain private and the Mail’s articles interfered with that reasonable expectation.

2.     Rights to privacy vs. freedom of expression enjoyed by the press?

After considering the balance between these two rights, the court decided that: (1) the only tenable justification for the Mail’s interference with the Duchess of Sussex’s expectation to privacy was to correct some inaccuracies about the letter contained in the original People article and; (2) the disclosures made were not a necessary or proportionate means of serving that purpose and in fact that the disclosures were manifestly excessive and hence unlawful.

Decision on copyright infringement

The letter was drafted electronically in the Duchess of Sussex’s mobile phone and produced in hard copy for sending. The claim was that the copyright held in the electronic and hard copy versions was then infringed by the reproduction in the articles.

The court found that there was no prospect of concluding that the drafting and production of the letter was a purely mechanical exercise reciting historical facts. In relation to the electronic drafts, it was held that the draft was the product of intellectual creativity sufficient to render it original and to confer copyright on its author.

The Duchess of Sussex was entitled to summary judgment on the issues of whether she held copyright in the drafts and the letter and whether this copyright was infringed by the Mail in reproduction of the information.

What can businesses learn from this case?

Privacy claims

This case exemplifies the courts’ strong approach when seeking to uphold the standard of privacy given to public figures in reiterating that being a public figure does not extinguish by its very nature all of your rights to private life.

The same is likely to apply when using information about anyone in the public domain. Businesses should take care when using any materials that may infringe another individual’s rights to privacy

Copyright

When publishing content on websites, preparing reports or putting out any other content that was not created internally, businesses should ensure they know the origins and creator of the content and, if they do not own the intellectual property rights in that content, have the benefit of an appropriate licence enabling them to use it. This case is a reminder that copyright protection can cover a broad variety of material, including earlier drafts of the works and demonstrates how keeping appropriate records and audit trails to demonstrate authorship can help when bringing an infringement claim.

For further tips or advice as to how to protect your business in respect of intellectual property infringement or privacy claims, please contact Bill Goodwin