With her lawsuit victory, Meghan Markle just secured your Right to Privacy

There has long been an impending struggle between the media’s assertion of the people’s right to know under Article 10 of the ECHR which grants the freedom of expression and the right to respect for private and family life of individuals under Article 8 of the same Convention. Over the years the media has used Article 10 to justify invading the privacy of public figures. May it be capturing and instigating Britney Spears’ meltdown, publishing private photos of Kate Middleton’s vacation, and most disturbingly contributing to the tragic demise of Princess Diana. But usually, interference with the private lives of public figures has found little sympathy often rationalised by their outstanding fame.

Although the Independent Press Standards Organisation’s (“IPSO”) Code of Practice for Editors, which the courts are obliged to regard, respects Article 8, it also provides that interferences with privacy may be justified in the public interest when preventing the public from being misled. Due to the lack of legislation on the right to privacy, this matter has been dealt with by caselaw. Although there a few landmark cases on the matter, the recent case of Sussex v Associated Newspapers Ltd [2021] EWHC may be hailed as the most significant. After extracts from a private letter written by Meghan Markle, the Duchess of Sussex to her father were published in a series of stories in the Mail on Sunday and Mail Online in February 2019, she sued Associated Newspapers, the parent company of the tabloids, for misuse of private information, infringement of copyright, and breach of the Data Protection Act 2018.

Here, the issue of misuse of private information proved to be extremely dicey. Precedent suggested that Meghan would have a claim only if she enjoyed “a reasonable expectation that the contents of the letter were private and would remain so.” In assessing this, the court employed the guidance of the test formulated in Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22. Also referred to as the Murray factors, which include the attributes of the claimant, the nature of the activity that the claimant was engaged in, the place it was happening, and the nature and purpose of the intrusion along with questions of consent. Meghan was a prominent member of the royal family, a public figure with ample media coverage. She was not engaging in an aspect of her public role or functions, but rather communicating to her father about his behaviour. She undertook this through a letter sent privately through a courier service to him alone. Finally, the intrusion involved the publication of most of the information in the letter in a popular newspaper and online, to a very large readership. Finally, there there was no consent, and this was known or could have been inferred by Mr. Markle and the defendant. Lastly, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher was discussed; here the disclosure caused the claimant at least some distress, especially as it was done with the cooperation of her father. The information was given to the defendant by the claimant’s father.

However, Meghan’s case dealt with additional complexities as before any interference by the Mail, the said letter had found a mention and a summary in People magazine’s article authorised by the duchess. By doing so it was argued that the duchess had brought her personal letter into the public domain to gain positive publicity.

Academics have argued that celebrity attempts to sacrifice their privacy for publicity may result in a loss of legal protections, as the invasion of privacy by the press could be seen as utilizing media to achieve or maintain fame.

In Douglas v Hello! Ltd (No.3) [2005] EWCA Civ 595, the celebrity couple Michael Douglas and Catherine Zeta-Jones entered into an exclusivity agreement with OK Magazine to print photos of their wedding. Instead, Hello magazine obtained and printed photos of their wedding, without the couple’s permission. The fact that the couple was willing to sell the rights to their private photos presented tension in asserting their right to privacy before the courts. It was stressed that the ruling in the couple’s favour was based on the grounds of commercial confidentiality, not the right to privacy. This made Meghan’s claim harder to prove.

The second part of the test in Campbell is the test of proportionality. Courts will have to ask whether the invasion of privacy is proportional to the purpose of the invasion, namely freedom of expression and public interest. Here the issue of “setting the record straight” came up. For context, when model Naomi Campbell sued the Mirror for publishing a photograph of her attending a Narcotics Anonymous clinic after previously refusing to take any drugs in interviews, the Court of Appeal held that publication of particular confidential information was justifiable in the public interest and necessary in setting the record straight.

The Supreme Court upheld that Campbell's right under Article 8 outweighed MGN's right to freedom of expression under Article 10, however, LJ Nicholls dissented. The arguments levelled by the defence found strong support with academics and the dissenting judgment which saw the publication of private information as a legitimate aim to set the record straight. This was precisely the argument used by the defence in Meghan’s case. They drew attention to the sympathetic People magazine article and the mail’s aim of helping Mr. Markle correct the misrepresentations he felt were made in the former article by sharing the complete letter for setting matters straight.

Since Princess Diana’s death, many institutions have tried submitting proposals to protect individual privacy. But the media’s treatment of Kate Middleton upon her introduction and more seriously, the racially charged witch hunt surrounding Meghan Markle, goes to show that not much has changed. However, the Sussex case ruling is a promising step towards it.

Even though the letter and some of its content was already part of the public domain and was written by the Duchess of Sussex, a public servant, to her father, a relationship that had been commented upon by the palace itself, the court still held that Meghan had a reasonable expectation that the contents of the letter would remain private and that the Mail articles interfered with that reasonable expectation. On the balance of probabilities, it also held that the disclosures were manifestly excessive, hence unlawful.

Due to greater awareness surrounding mental health, recent documentaries like "Framing Britney Spears" and the bombshell Meghan Markle and Prince Harry interview with Oprah, the public has never been more aware of the negative impact that extensive and malicious media coverage can have on the mental health of public figures. The court’s decision is in line with the sentiment.

This case has established a strong precedent in favouring Article 8 over Article 10 in matters of disclosure of private information of celebrities. The wider implications suggest a deterrence of free speech about celebrities, leading to more privacy and less openness. While positive news for some, journalists like Oliver Duff worry that public figures with far less salubrious characters will follow the royals and seek to hide their wrongdoing and corruption. But many are hopeful that it may be the catalyst for the Parliament to finally enact privacy legislation, as one of the reasons for its absence is believed to be “the fears of the reaction of the press". With her case, Meghan Markle managed to force the court’s hand in upholding the sacrosanctity of an individual’s privacy and the Parliament may soon catch up.