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This article has been written by Arkadyuti Sarkar, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction

In February 2021, Meghan Markle, the former actress and the Duchess of Sussex emerged victorious in a long drawn suit against Associate Newspaper Limited (ANL) at the High Court of Justice in London. She had initiated the suit against Defendant, the publisher of ‘Mail on Sunday‘ and ‘MailOnline’, on claims of infringement and violation of copyright, privacy, and data, after the latter had published 5 articles in 2019 using the extracts from a personal and private letter she had penned to her father, Thomas Markle, way back in 2018. The extracts had been used without obtaining any permission from her by the defendant. This victory comes after the partial victory of the former actress against the tabloid over violation of privacy and data this same year. The question before the court was to decide whether an author of a letter has copyright over such a letter and what the UK law says on that. 

What led to the suit?

Sometimes in 2018, Meghan had mailed a 5-page letter to her father, Thomas Markle. This would become the focus of a lengthy legal tussle between the former Royals and the defendant. On February 10th of 2019, The Daily Mail obtained the letter that Meghan had sent to her father and published it with glorified editing. In addition to that, the tabloid also enlisted a “handwriting expert,” who claimed that the letter suggested the former actress being an “ultra-cautious”, a “showman and a narcissist”, “materially motivated”, and “a consummate performer and strategist”. The very same year, Meghan filed a copyright infringement suit and privacy breach suit against the defendant at the High Court of Justice in London. In this article, we will introspect the legal provisions involved and analyze the copyright claims by Megan over the letters to her father.

Legal provisions in the UK Copyright Law

According to Section 9 of the Copyright, Designs, and Patents Act 1988; the creator of a work is its first owner. According to the provisions of Section 18 of the same Act, issuance of the copies of a copyrighted work before the public is an act restricted by the copyright in every description of copyright work.

Meghan’s claims

In February 2021, Justice Warby favored Meghan and asserted that the Claimant had reasonably expected the continents of the letter to remain private while the tabloid articles had interfered with such expectation. However, even after this judgment, the newspaper went on to refute Meghan’s sole ownership over the contents of the letter. Again, in May 2021, the High Court of Justice sided with Meghan and adjudged her to be the sole owner of the letter she had written to her father and held the British tabloid liable for copyright infringement. Meghan’s lawyer claimed the contents of the letter were private since it was correspondence about her private and family life, and not her public profile or her work-life. Moreover, the letter contained her intimate thoughts and feelings that were her private matters and devoid of legitimate public interest. Further claims were made that the Letter is an original literary work being protected under copyright and that she is its author, and of the draft that she created on her phone (“the Electronic Draft”).

Contentions by the Daily Mail

The media house contended that the contents of the letter were neither private nor confidential as alleged by Meghan and hence she lacked any reasonable expectation of privacy. Moreover, if any privacy interest the claimant enjoyed were:

Limited

There was a legitimate public interest in the activities of the Royal family and the claimant’s status as its “high-ranking member”.

Destroyed, weakened, or compromised

Meghan had knowledge about her father’s propensity to speak before the media concerning their relationship, the legality of the existing publication and contents of the Letter in the US, her conduct to cause, authorize, or intend publicity about the Letter and/or her general relationship with her father, and the publication of letter related information.

Public disclosure

The article published before in the People provided misleading details of the father-daughter relationship, the Letter, and Mr. Markle’s letter in reply.

Hence, public disclosure of the contents of the Letter in the publication was justified for safeguarding the rights and interests of Mr. Markle and the public at large.

Other contentions by Daily Mail

Daily Mail with regards to the copyright infringement claim by Meghan, questioned her case on originality, subsistence, ownership, and infringement of the copyright. Moreover, they relied on the defenses of fair dealing and legitimate public interest and contended the outweighing of the copyright claim by Convention rights of others to impart and receive information. 

Moreover, the tabloid argued that Meghan was assisted by the Kensington Palace Communications Team while writing the Letter. The team consisted of Jason Knauf of Royal Communications, Christian Jones, Sara Latham, and Samantha Cohen. Hence, the claimant not being the sole creator of the letter cannot claim to be the owner as it is owned by the Crown.

Justice Warby’s observation

After introspecting the submissions by both sides, Justice Warby sided with Markle’s contentions and went on to observe as follows (only the relevant ones are excerpted for the readers):

Manifestly excessive publication

The publication of Meghan’s handwritten letter to her father “manifestly excessive and hence unlawful”.

The letter was private and personal

It was “a personal and private letter” dealing with the Duchess’s “feelings of anguish regarding her father’s behavior, as she viewed it, and the resulting rift between them”.

No substantial involvement of the Royal Family

The court failed to find any substantial involvement of Mr. Kaunf in assisting while the Claimant wrote the letter to her father. Hence, the Crown, as contented by the tabloid, can be deemed as neither creator nor owner of the letter.

Misuse of private information

Meghan had a reasonable expectation regarding the privacy of the contents, and the tabloid’s conduct had misused her private information.

Infringement of Copyright

The tabloid articles by reproduction of her work infringed her copyright in the material form, and promulgated to the public, copies of a substantial part of the Electronic Draft and/or the Letter.

It is the compensation time

A remote hearing was held in March of this year for ascertaining the damages, costs, and other issues. Meghan’s lawyers filed documents claiming up to £1.5 million and requested the judge to order Defendant to pay £750,000 towards the legal costs within the next 2 weeks. The Court has now ordered that the tabloid must pay 90% of Markel’s legal expenses, which approximately amounts to $1.87 million, according to Royal reporter Omid Scobie. The judge decided the amount relying upon “matters on which she succeeded.” Moreover, the Court ordered the defendant to print a statement on its front page and page three that it infringed Meghan’s copyright. However, the order is on hold until the Court of Appeal’s decision as Defendant was permitted to appeal against it.

Aftermaths

After the big win, Meghan went on to assert her happiness from being delivered the long-delayed justice and thanked the judiciary. Contrarily, she raised sharp criticism of the predatory journalism by the tabloids like Associate Newspaper Limited (ANL) and stated that it has been doing just the opposite of providing reliable, fact-checked, and quality news that is originally expected from newspapers. 

Associate Newspaper Limited, on the opposite, expressed its dissatisfaction and disappointment with the judgment. However, it stated that it would not contest the copyright infringement judgment before the Court of Appeals, but is intending to appeal against the earlier part judgment on data privacy violation 

Conclusion

This is not the first time tussle regarding privacy violation between the British Royal family and the Media has happened. In the past also, in numerous instances, the media has been accused as well as held liable for violating the privacy of the members of the British Royal family. The infamous and saddening incident culminating in the death of Princess Diana, mother of Harry and former princess, while trying to escape a paparazzi had gained notoriety. Moreover, the royal family has continued to remain under media coverage over their personal life and this legal victory does not seem to make much difference in the scenario as many such cases have been filed in the past and may happen so in the future. The only thing for these tabloids and media houses is to understand that even the influential personalities, akin to normal people, have the right to privacy and hence require some personal space. Constant coverage of their movements and everyday lifestyle is not only a violation of their privacy but also a cause of their mental anguish. Therefore, the faster these media houses comprehend it and refrain from these activities the better. After all, no one has the right to jeopardize a person’s private lifestyle just for the sake of some cheap gains in the form of TRPs.

References

  1. https://www.law.georgetown.edu/gender-journal/wp-content/uploads/sites/20/2019/11/Alicia-4.pdf.
  2. https://www.judiciary.uk/wp-content/uploads/2021/02/Duchess-of-Sussex-v-Associated-2021-EWCH-273-Ch.pdf.
  3. https://www.bbc.com/news/uk-56999331.
  4. https://www.lexology.com/library/detail.aspx?g=7001625b-6cda-4d73-a545-9041f550c311#:~:text=In%20the%20High%20Court%20of,MailOnline%2C%20for%20publishing%20and%20disseminating.
  5. https://www.cosmopolitan.com/entertainment/celebs/a32465858/meghan-markle-lawsuit-thomas-markle-letter/.

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