Roar writer Conor Walsh on the recent HRH Duchess of Sussex v Associated Newspapers Ltd case.
Would you feel comfortable with every move you make, every text message or letter you send, being scrutinised and examined by others? Probably not. And I would hazard a guess, in the democratic society we live in, you also value the importance of freedom of the press. Both rights are governed by the Human Rights Act 1998.
So, the question is, how far do these rights extend when one is in direct contention with the other? To which should we, as a society, give precedence and where do we draw the line with regards to the limits of both freedoms?
This is a question that the Court of Appeal grappled with HRH Duchess of Sussex v Associated Newspapers Ltd. Their judgment on December 2, 2021, demonstrated where the boundary of infringing upon someone’s right to privacy is crossed, even for public figures such as Meghan Markle. On the facts of this case, that was through the publication of certain extracts of Meghan’s private letter to her father. The letter shows the true tragedy of Meghan’s rift with her father. She said he had broken her heart into a million pieces.
Associated Newspapers Ltd claimed that, following an interview of five of the Duchess’ friends by People Magazine, the publication of the letter formed an integral aspect of, the Duchess’s father, Thomas Markle’s right to reply. This argument was supported by the fact that he was the person who leaked the letter which, the publishers said, demonstrated certain aspects of Mr Markle’s daughter’s character and her relationship with her father. However, Sir Geoffrey Vos, President of the Court of Appeal’s Civil Division, rejected this argument on the basis that the newspaper, the Mail on Sunday, described the letter’s publication as a new public revelation rather than offering appropriate attention to Mr Markle’s response to the magazine interview’s claims.
Where the waters become murky is when it’s taken into consideration that the Duchess described the letter as deeply personal, yet Jason Knauf, former communications secretary for Mrs Markle, claimed in a witness statement that the Duchess had told him, “Obviously, everything I have drafted is with the understanding that it could be leaked”.
While some may view Knauf’s statement as damaging the credibility of the deeply personal element of the letter, should we not see this as somebody in public life taking a realistic and pragmatic approach to the reality of the life they lead in the public eye? If you were to write such a letter with the knowledge that it may be leaked, you too would want to ensure, as far as possible, that it does not reflect upon you in a harmful manner, right? This doesn’t necessarily take away from the fact that it would be a personal letter, nor would you be accepting the fact that the leaking of the letter is warranted, you would just be acknowledging reality.
Is there a valid public interest in the publication of such a letter? The three Court of Appeal judges felt not, saying the contents were “private and concerned personal matters that were not matters of legitimate public interest.”
In response, Matthew Dando, partner at Wiggin LLP, said “the decision also heightens concerns that privacy laws permit public figures selectively to determine what can be reported about them”, but surely this is the fairest outcome. Although we may forget it, public figures have private lives and should be entitled to the privacy aspect of these parts of their lives. Callum Galbraith, partner at Hamlins LLP, in supporting this view, stated these articles exposed intimate information concerning the Duchess’ innermost thoughts set out in a letter to her father. The Mail on Sunday had “no legal right to publish such extensive information”.
Markle’s statement, in the aftermath of the ruling, pointed out that people must be “brave enough to reshape a tabloid industry that profits from the lies and pain that they create”. Dando suggests that this ruling may already have started such a process as “publishers will become more selective on what they print and the real losers will be the British public”. We must question, however, whether this is to the detriment of the industry or if it is something that will force newspapers to publish stories that are of valid public interest. Such a distinction can be hard to draw, and this case proves that point.
Is it fair that newspapers have to make the tough decisions on what is acceptable to publish? Perhaps not, but, in the absence of any public body dedicated to this task, if they are the ones who will ultimately profit off the article, the difficult decision should be left with them, should it not?
Unfortunately, all the answers may not yet be at our disposal with regards to where this leaves the law and the balance between privacy and freedom of the press as Associated Newspapers have indicated that they will possibly seek to challenge the ruling in the Supreme Court, although lawyer Mark Stephens suggests “it would be unusual for Britain’s Supreme Court to take such a case.” He points out that the publisher could seek further litigation at the European Court of Human Rights. For now, all that can safely be said is that newspapers will be more selective in what they choose to publish about the private lives of public figures.
At the end of the day, for the Duchess, now that the letter has been published, the proverbial genie cannot be put back in the bottle. No court ruling can undo what was done, all that can be hoped for is that this ruling brings about a greater balance between the two competing rights.