A Duchess’s Gambit

This post has been contributed by Dr Carol Brennan,  Module Convenor for Tort law.

A headline read: “Revealed: The letter showing true tragedy of Meghan’s rift with a father she says has ‘broken her heart into a million pieces’.” This topped one of the five publications which prompted Meghan Markle, then newly married to Prince Harry the younger son of the heir to the British throne, to launch a legal action. Published in early 2019 in the newspaper the Mail on Sunday and the Mail Online, the articles contained excerpts from a ‘private and confidential’ letter written by the claimant to her father Thomas Markle. In HRH The Duchess of Sussex v Associated Newspapers Ltd (ANL) damages are being sought for misuse of private information, breach of data protection regulations and infringement of copyright. ANL wholly denies the allegations, particularly the Duchess’s claim that the letter was edited in any way to change its meaning. A projected ten-day hearing into the matter in the High Court has recently been postponed until autumn 2021. It is nevertheless useful to consider the history of legal clashes between British royalty and the press, highlighting the current legal criteria according to which this case will be determined.

Cartooon crown

As long ago as 1849, the case of Prince Albert v Strange concerned the unauthorized publication of a catalogue comprised of drawings and etchings of ‘private and domestic interest’ made for family and friends by Prince Albert and his wife Queen Victoria. The images were obtained by the defendant from an employee of the private press used by Prince Albert. It was held that this employee had breached the trust and confidence of his employer in passing them to the defendant and this, in addition to the essentially private nature of the portrayals, justified the granting of an injunction for the return of the reproductions and destruction of the catalogues. Although Prince Albert is frequently cited as an example of a breach of confidence action, it is not generally known that the term ‘privacy’ also pervaded the judgment.

Since the passing of the Human Rights Act 1998, privacy in the UK has gradually come to be protected by the evolving new tort of ‘misuse of private information’. A ground-breaking case was brought by Naomi Campbell, who might arguably be described as ‘royalty’ in the word of super-models. Campbell v Mirror Group Newspapers in 2004 concerned revelations in a tabloid newspaper about her attendance at a support group for those struggling with substance abuse. The House of Lords focused on the need to balance the article 8 right to private and family life with that under the article 10, the right to freedom of expression. According to Lord Nicholls, ‘Essentially the touchstone of private life is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy.’ If such an expectation is established, then article 8 is engaged, opening the way for the court’s balancing exercise, as detailed in s 12 of the Human Rights Act 1998. By a three to two majority Ms Campbell was successful, in part due to the quasi-therapeutic nature of her involvement with the support group.

A descendant of Queen Victoria, Prince Charles, again cited breach of confidence in HRH Prince of Wales v Associated Newspapers in 2006, when he brought an action claiming damages against the Mail on Sunday. The defendant had published extracts from his personal diary concerning a state visit to the Far East in 1997; in particular focusing on the Prince’s views on the handover of Hong Kong to China and his opinions on various Chinese officials he met at formal events.

As in Prince Albert’s case, the documents were obtained by the defendant as a result of a breach of confidence. However the more modern action for misuse of private information was the now the central cause of action. First, applying Campbell, did the claimant have a reasonable expectation of privacy in relation to the information in question? If so, then article 8 would be engaged. Despite the fact that it was not of a ‘highly personal or private nature’, (ie intimate) and that the diary had been circulated to between 50 and 75 closely-monitored recipients, the contents of the journal were held to raise a reasonable expectation of privacy because the envelopes in which they were circulated had been sealed and marked ‘Private and Confidential’. It was held that even public figures were entitled in some circumstances to expect privacy in expressing their thoughts, even about issues of an essentially political nature. The judge endorsed the prince’s claim that his need for a ‘private space’ to record thoughts, even on matters at the less intimate end of the privacy spectrum. This outweighed any countervailing article 10 rights in freedom of expression, and thus the Prince’s action was successful. Also of interest on this topic are the actions brought by Princess Caroline of Monaco against the German press (Von Hannover v German Nos 1 and 2).

The coming year will doubtless see more twists and turns in the legal saga of HRH The Duchess of Sussex v Associated Newspapers Ltd. This is unlikely to be the last of such confrontations. We know that this is only one more incident in the centuries-old relationship between the monarchy, celebrities and the press.

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