The United Kingdom is no stranger to high-profile trials by celebrities – including members of the royal family – seeking to protect their privacy in court.
While lawsuits of this type often take the form of defamations, the one recently launched by Meghan, the Duchess of Sussex – known before her marriage to British Prince Harry as Meghan Markle – against the sensational newspaper The Mail on Sunday , is unusual. This is a case not based on defamation but solely on privacy: it claims that her right to privacy was violated by DMG Media, formerly Associated Newspapers, the parent company of Mail on Sunday and other sensational newspapers.
The matter is heard by videoconference.
The Duchess of Sussex is suing the tabloid for the publication of a personal letter she wrote to her father almost two years ago.
“The question of whether private information can be lawfully published is a question of balancing the rights of privacy and of factual expression in each case”, Hugh Tomlinson, a lawyer who previously represented Prince Charles in a confidentiality case, told Al Jazeera.
If Markle and her husband, Prince Harry succeed in their case, it could have far-reaching consequences for media freedom in the UK, including preventing press freedom from reporting on public figures, suggest analysts.
Markle’s case centers on a personal letter she wrote to her father, Thomas Markle, in August 2018, after he refused to attend her wedding due to illness. In her letter, the Duchess said that she was upset that her father had contacted the press and had not responded to her calls.
In February 2019, the Mail on Sunday published extracts from his letter.
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In October, she sued the newspaper for misuse of private information and for violating copyright and invading her privacy. She is claiming compensation under the General Data Protection Regulation and the 2018 Data Protection Law.
Markle says that the Mail on Sunday had “dishonestly” cut out a few words and phrases from the letter in order to paint a misleading picture of the father-daughter relationship. She claims that the tabloid “intentionally distorted or manipulated” part of the letter. She also accuses the newspaper of malicious intent.
The royal couple see the case as a way to fight wider coverage which they see as unfair. But Tomlinson explains that malicious intent has little relevance in deciding whether or not his privacy has been violated. However, if the document turns out to be malicious, it could affect the amount of damages – if damages were eventually awarded.
The Campbell case
Lawyer representing the Duchess, David Sherborne, raised the most important legal precedent in privacy law before the court: the 2004 model Naomi Campbell’s case against the Daily Mirror in which she sued Mirror for having published a photo of her attending a Narcotics Anonymous clinic in February 2001.
Counsel for Campbell relied on the “lack of confidence” provision in section six of the 1998 Human Rights Act. She was successful after the court ruled that she was entitled to “invasion of privacy” from the newspaper.
In the case, Lady Hale referred to a “new crime of privacy”, inspired by the European Convention on Human Rights. The court held that the need for treatment for drug addicts was more important than the public’s right to know about it. The ruling emphasized that the state has a positive obligation to protect the right to privacy. This means that the courts must go beyond mere “non-interference” in the right to privacy and create concrete mechanisms to protect privacy.
Colm O’Cinneide, a professor of law at University College London, said another way in which the state could give effect to this obligation was to enact legislation to protect privacy. The British Parliament has not, however, enacted privacy laws. One reason could be “because of fears of the press reaction,” said O’Cinneide.
“It is clear that Meghan and Harry are at war with the media. They decided that the media had crossed a line, “said O’Cinneide.
The European Convention on Human Rights was incorporated into British law by the Human Rights Act of 1998.
Article 8 of British law states that everyone has the right to respect for his private and family life, his home and his correspondence.
But section 10 of the Human Rights Act also protects freedom of expression: “This right includes freedom of opinion and of receiving and communicating information and ideas without interference from public authorities and independently borders “.
“There is also broad agreement on what the new right to information privacy, or expanded action for breach of trust, should protect, namely the disclosure of information when” the person publishing the information knows or should know that there is a reasonable expectation that the information will remain confidential, “wrote Lady Hale in the Naomi Campbell judgment.
Reports should reveal something of “legitimate” public importance, rather than spread gossip or anecdotes, regardless of the number of readers who speak about it
Geoffrey Robertson QC, human rights lawyer
British courts must first ask whether an applicant has a “reasonable expectation of privacy”. If so, the courts will conduct a balancing inquiry – balancing the right to freedom of expression and the right to privacy. This investigation is guided by the application of certain criteria contained in the case law – the most important in the case of the European Court of Human Rights Von Hannover v Germany, which involved an action for the protection of privacy brought by Princess Caroline of Monaco.
As part of the balancing exercise, the UK courts will rely heavily on the proportionality test. Courts will have to consider whether the invasion of privacy is proportional to the purpose of the invasion.
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Newspapers, like the Mail on Sunday in this case, often rely on the defense that it is in the public interest to report on a given issue. But not everything that interests the public is in the public interest, the von Hannover case found.
Information that is in the public interest is such that the publication would be beneficial to the public, not to its titillation. It would include the information necessary to prevent crime or protect national security, for example.
According to Geoffrey Robertson, human rights lawyer and media law expert: “Reports must reveal something of” legitimate “public importance, rather than spreading gossip or anecdotes, regardless of the number of readers who talk about it. “
The ongoing hearings are just the first step in a process that will culminate in a full trial later this year. It is anticipated that the trial may well open up discussions on issues of royalty funding.
Ultimately, however, the case could affect the extent to which newspapers are free to report on the lives of celebrities.
Robertson said the case could go to the Supreme Court. “The final decision of this court would be very influential, and if it rules against the Mail, it may deter freedom of speech on celebrities – although such speech is not always in the public interest. “
Another media lawyer, Heather Rogers, predicts that a victory for the Sussexes would mean “more privacy and less openness.”
Journalist Oliver Duff explains the importance of the case: “Where members of the royal family will walk, far less salubrious figures will follow as they seek to hide wrongdoing and corruption.”
Whether the figures involved are salubrious or not, the outcome of the royal family affair will guide the press on where to draw the line between the public and the private.