I’m not going to lie to you. When I found out via Twitter on Thursday afternoon that Meghan’s request for a summary judgment against Associated Newspapers had been granted, I gasped. Out loud. At my work. I was absolutely sure that the case would go to a full trial, though I didn’t know who would win when everything was on the table.
If you’re wondering what the heck I’m talking about, please read this post. In two sentences: Meghan sued a tabloid newspaper for publishing a handwritten letter that she sent her father, which her father then sold to said tabloid newspaper. Her lawyers argued that she had such a slam-dunk case on issues of breach of privacy and copyright law that the judge should declare her the winner without even going to a trial, and this week, the judge said, “Yeah, okay.”
I’m (sort of) kidding. The judge’s version of “Yeah, okay” was a 53-page ruling that is incredibly detailed and nuanced. Because I’m me (policy advisor in the house, what what), I printed off a copy of the full ruling and just finished reading it.
So, why was I surprised when it was announced that Meghan had won a summary judgment on this case? Well, to be frank, it seemed pretty clear to me at the time that she didn’t have an open and shut case. There were so many subtleties to both sides’ arguments that, I thought, it would have to go to a full trial just so everyone could give all of their disclosure and the judge rule on the facts of the case.
Some of the facts to be decided on during a trial were: whether and to what extent Buckingham/Kensington Palace staff helped write the electronic draft of the letter before Meghan wrote it on paper; whether Omid Scobie and Carolyn Durand’s book Finding Freedom and Meghan and Harry’s cooperation with the writing of it lessened Meghan’s case; and who Meghan’s five friends from the People Magazine article were. And this was all before ruling on who the winner and loser was!
So to hear that Justice Warby had already decided on the vast majority of the case – and that he had decided in Meghan’s favour – seemed wild to me. But, over the next few days, I read through Justice Warby’s ruling with a highlighter/pen combo in hand, and now I think he made the right decision. It makes a lot more sense to me now. And I also found some nuggets of humour/pettiness/drama that made me laugh out loud, which are, in my mind, equally worth writing about. So let’s go through this ruling.
Ruling: Meghan won 100% on her privacy breach claim and 90-ish% on her copyright infringement claim
Meghan’s lawsuit against Associated Newspapers was on two counts. The first is that by publishing her private letter intended only for her father, Associated Newspapers had infringed upon Meghan’s reasonable right to privacy. Justice Warby ruled that Meghan was right to file this claim, and that Associated Newspapers would have no way to win against Meghan’s arguments on this if it went to a full trial.
The second part of the lawsuit is that Meghan, as the author of the letter to her father, owns a full copyright on the letter, and that Associated Newspapers broke the copyright laws of the UK by publishing her “original literary work”. Justice Warby ruled that, again, Meghan will definitely win this claim if it goes to trial; however, because we don’t know for sure if Kensington/Buckingham Palace helped her draft the electronic version of the letter that she later wrote out with a pen and paper, we don’t know whose copyright was infringed upon. Therefore, Justice Warby ruled, it would be prudent to go to a full trial to determine if Meghan alone was the author, or if the KP/BP comms staff helped co-author and are therefore entitled to damages from Associated Newspapers. So, in effect, Meghan has essentially won the copyright part of the lawsuit, but determining if anyone else deserves ownership of the copyright with Meghan is TBD and could go to a full trial. That will be decided at a later date. Either way, Meghan will receive some damages from Associated Newspapers for publishing her letter on its website.
- Justice Warby indicated that he had enough information to rule in favour of summary judgment partly because the case had already dragged for so long and that both sides had submitted and re-submitted evidence so many times, he was well-enough-acquainted with the ins and outs of the case (“the process of disclosure…is fairly well advanced” (section 27).
- Justice Warby stated that even public figures are deserving of some sort of private life: “There must be something of a private nature that is worthy of protection” (section 30).
- It’s clear to basically everyone that Thomas Markle is a terrible father and a bit of a turd generally.
- It’s also clear to basically everyone that Associated Newspapers and its tabloids are not good at providing logical, nuanced, well-reasoned stories. Justice Warby says that the stories run about the letter were filled with non-sequiters and that inferences made in the MailOnline articles posted about the letter were not based in fact. He also called the “handwriting expert” articles about the letter (my wording) utter nonsense.
The Privacy Breach Claim
There was a lot of discussion about whether the publication of Finding Freedom, and Harry and Meghan’s rumoured assistance with and approval of the book, weakened Meghan’s pleas for privacy in the case of the letter to her father being published. Finding Freedom, did, in fact, publish sections of the letter in question. A logical question that could be asked is: If publishing the letter is so wrong, why didn’t Meghan also sue Omid Scobie and Carolyn Durand for doing the same thing?
Justice Warby answers this by saying that even if Meghan and Harry directly gave a copy of the letter to Omid and Carolyn, it had already been published in the Mail for several months. Additionally, Finding Freedom only published quotes from the sections released by the Mail, so they can claim that they plausibly gained access to the letter from the Mail and not the Sussexes.
One of my main takeaways of the ruling was the following quote from Associated Newspapers: that Meghan “does not object to details of her own or others’ personal relationships and correspondence being publicly disclosed, provided the disclosure is favourable or flattering” (section 63). In other words, if something comes out that makes Meghan look great, it’s not breach of privacy; if something comes out that makes her look terrible, she goes into a tizzy and demands that it be removed under privacy grounds. Justice Warby’s reply to this is: Yes, it’s possible that Meghan likes publicity that makes her look good and abhors publicity that makes her look bad. Warby agrees that there is supporting evidence for that (section 88). But whether Meghan likes good publicity or hates bad publicity is beside the point and irrelevant in this case. It has no bearing on a privacy claim (sections 101-3). So, point Meghan.
The letter is mostly about Meghan, not about Thomas
Associated Newspapers argued that Meghan’s father, Thomas Markle, had an equal right to publish the letter because it concerned him. Justice Warby, for the most part, said this isn’t the case. He stated that the vast majority of the letter was direct, first-person comments on her thoughts and feelings, and that the letter was pretty clearly a private document encompassing thoughts and opinions belonging to her.
Thomas Markle’s argument of why he sold the letter to Associated Newspapers is that he felt Meghan’s friends’ portrayal of him and the letter in the February 2019 article mischaracterized him, and that he felt the need to set the record straight. Justice Warby ruled that although the mention of the letter in People Magazine was not a 100% accurate portrayal, it did not meet the level of harm to Thomas to warrant him giving the letter to a newspaper to publish around the world. In Justice Warby’s words: “There is no authority to support the view that the mere fact a person “believes” his portrayal is untrue is enough to justify a reply” (section 112). Point Meghan.
Meghan treated the letter as if it was private
Meghan wrote this letter to her father in a private capacity. She sent the letter privately via FedEx to ensure that only her father would see the contents of it. And, as Justice Warby argued, the fact that Thomas is a (my words) garbage human being and was likely to leak the contents of the letter doesn’t mean that Meghan didn’t deserve to have the contents of the letter remain private. (His wording is, “A person’s rights against another are not defeated by the prospect that those rights may be ignored or violated” (section 78). In other words: just because you keep the doors to your car unlocked doesn’t make the person who steals your car any less guilty for stealing the car.
The Mail referred to the letter as PRIVATE
One of the main reasons Justice Warby agreed with Meghan that the letter is private is really obvious and I’m mad at myself that I didn’t realize it sooner. It’s simply that when the Daily Mail published excerpts from the letter, it said over and over that the letter was private (from section 73 of the ruling):
According to these articles this was “Meghan’s private letter” which reveals the “true tragedy of Meghan’s rift with her father” as she “pours out her heart to her father”. It was an “anguish[ed] letter in response to public attacks … begging him to patch up their differences privately”,which Mr Markle “‘planned to keep …totally private out of respect for her’”. In an earlier judgment, I referred to an article which the defendant published the day after the Mail Articles, describing the Letter as “deeply personal”.
US vs. English law
Part of Associated Newspapers’ defence was that the copy of the letter that Thomas sold to them travelled from Thomas Markle in Mexico to a Daily Mail reporter in LA, not London. Justice Warby shot this defence down. The Daily Mail is headquartered in London, so this case is a matter of English law. Point Meghan.
The copyright claim
The copyright part of the case is much easier to summarize. Meghan’s argument is: I wrote the letter, and I wrote the electronic draft of the letter on my phone. The copyright to the letter is mine, and Associated Newspapers published it without informing me and without my consent. It would be the same thing as a newspaper publishing someone’s book in its daily edition and not paying or asking the author. You can’t do that.
Justice Warby agreed that Meghan is a copyright holder on the letter. However, there is an argument to be made that because Kensington/Buckingham Palace staff provided feedback on the electronic draft of the letter to Meghan, that they may hold a portion of authorship and copyright claim on the letter as well.
This decision won’t impact whether Associated Newspapers was in the wrong to publish the letter – it was. It basically just means that we need to determine if Meghan gets 100% of the damages from Associated Newspapers’ copyright infringement, or if part of that cut should go to one or more of the KP/BP staff as well. It’s also been suggested that because the KP/BP staff work for Her Majesty The Queen, that a Crown copyright on the document would also apply. This Crown copyright argument is sort of far-fetched, but it can’t be fully shot down without going to a trial.
Even Justice Warby says that these things are probably too small to go to to a full trial over, but that if Meghan wants to have it sorted out, she can. I think that the copyright issue will be thrown out because no one will want to pay a ton of money on something when we already know Meghan has won the case. Presumably we will get a final decision on this during the judgment conference in March.
That’s it. Hope you enjoyed reading. Support me via Square here. Stay safe, wear a mask.