The Court of Appeal has today refused an appeal by Associated News against the decision of Mr Justice (now Lord Justice) Warby to grant the Duchess of Sussex summary judgment in respect of her claim for breach of privacy rights and breach of copyright against Associated. This is an important judgment on the interplay between privacy and free speech rights, not to mention the application of copyright law, and so bears some detailed consideration.Unless you have been living under a very large metaphorical rock, you will know that the case is concerned with the legality of Associated’s act of publishing in the Mail substantial extracts from a letter which Meghan Markle had written to her father, Mr Markle, in August 2018. Ms Markle claimed that the publication in the Mail amounted to a tortious misuse of her private information. She also claimed that it amounted an unlawful copyright infringement. Associated sought to meet this case, in essence, by contending that the publication was justified in the public interest, and otherwise amounted to a form of ‘fair dealing’ for copyright purposes because: the letter was sent as part of a wider media strategy by Ms Markle to improve her image (although this allegation was subsequently dropped); it was sent in the knowledge that it would likely enter the public domain; the letter had been provided to the publishers of a book about Ms Markle (a book which being produced in collaboration with Ms Markle), and had in fact subsequently been published in that book; there was, moreover, a pressing need to publish the extracts from the letter in order to set the record straight. The latter allegation was advanced on the basis that an earlier article published by People magazine presented an unfair and misleading impression of Mr Markle’s behaviour, which impression the Mail was seeking to correct in its own reporting.

In an internationally reported judgment, Warby J, as he then was, readily concluded that Associated’s defence to Ms Markle’s claims had no real prospect of success, and he accordingly granted Ms Markle summary judgment in respect of her claims under CPR 24.2. In summary, Warby J held as follows:

• Associated’s own pleaded case lead inexorably to the conclusion that Ms Markle would be able to establish that she had a reasonable expectation of privacy in respect of the contents of the letter;
• Associated would plainly not be able to adduce evidence at trial enabling the Court to conclude that Ms Markle’s right to privacy was outweighed by any counter-vailing free speech rights, not least because, to the extent that the recorded needed to be set straight, publication of the extracts from the letter constituted a wholly disproportionate means of achieving that objective. Thus, Ms Markle would be bound to succeed at trial on her misuse claim;
• the fact that there was no free speech justification for publishing the extracts necessarily put paid to Associated’s ‘fair dealing’ defence to Ms Markle’s copyright claim.

After 2 ½ days of argument, the Court of Appeal has concluded that Warby J’s judgment is a model of sound and unassailable reasoning. The following is a summary of the core aspects of the Court’s reasoning

• The articles not a corrective – The Court of Appeal rejected the argument that the judge had failed to recognise the significance and importance of the attack on Mr Markle by the People. The Court of Appeal concluded that the judge had properly assessed the implications of the reporting in the People. Moreover, importantly it observed that, rather than answering that attack, publishing extracts from the letter in any event was ‘simply more of the same’ [75]. It held that the articles in the Mail were focussed more on ‘revealing the contents of the letter’ than ‘providing Mr Markle’s defence to the allegations in the People Article’ [77] (per Sir Geoffrey Vos MR).
• Reasonable expectation of privacy – On the issue of whether Ms Markle had a reasonable expectation of privacy in respect of the letter, Associated notably did not press any argument to the contrary in its oral arguments before the Court [81]. Instead, its case, in effect, was that the judge had erred by failing to allow Associated to adduce evidence at trial which might (or would on Associated’s case) show that Ms Markle’s privacy interests, such as they were, were not very weighty. However, once again the Court of Appeal regarded the judge’s analysis, and particularly his application of the factors identified in Murray v. Express Newspapers plc [2008] EWCA Civ 446 (para 36) as being ‘impeccable’ [81]. Perhaps most importantly, the Court was unmoved by arguments advanced by Associated to the effect that the judge had erred on this issue by failing to recognise the potential for Associated to unsettle this part of Ms Markle’s case at trial by reference to her own attempts to control media reporting about her and her relationship with her father. Crucial to the Court’s conclusion on this issue was that, prior to the publication of the articles in the Mail, Ms Markle had not put the letter into the public domain. The Court noted that such evidence as might be adduced at trial concerning the provision of the letter to the publishers of a book about Ms Markle could not affect this conclusion, notwithstanding Associated’s allegation that Ms Markle had collaborated in the production of the book: the judge had properly concluded that there was no proper basis for pleading that the letter obtained by the publishers of the book could only have come from Ms Markle; moreover, such evidence as there was made it ‘plain’ that, whilst Ms Markle ‘was prepared for the possibility that the letter might become public’ she ‘did not want the contents of the letter put into the public domain’ [85].
• Balancing the competing A8/A10 interests – Here too the Court concluded that the judge’s reasoning was without fault. In particular, the Court of Appeal rejected Associated’s argument to the effect that the judge had given Ms Markle’s privacy rights a primacy in the balancing exercise which conflicted with the House of Lords’ judgment in Campbell. It concluded that the judge did not approach matters on the basis that Associated had to prove that it had the right to publish the article; that he also did not proceed on the basis that Associated had to show that the publication was necessary in the public interest; moreover, when he used the word ‘necessary’ he was clearly posing the question of whether the publication was ‘justified’, consistent with the approach approved in Campbell. Critically, the Court of Appeal concluded that it was entirely open to the judge to take the view that the publication was not justified, particularly given that: it did not serve as any proportionate corrective or justified rebuttal of the People article; to the extent that Mr Markle enjoyed any right of reply, the publication did not proportionately serve that interest; moreover, ‘the remainder of the Articles simply glorify the disclosure of the contents of the Letter, which … are actually more of the same in the sense that they accuse Mr Markle of bad behaviour’ [95].
• Copyright/the fair dealing defence – The Court of Appeal was satisfied that the Court had dealt properly (albeit pithily) with this issue also, finding that Associated had been unable ‘seriously to impugn the balancing exercise that the judge carried out between the copyright protection on the one hand and the fairness of publication on the other hand in the context of his determinations as to what were current events’ [103]
• The overarching picture – This concluding paragraph of the judgment really sums up the Court of Appeal’s take on the case: ‘Essentially, whilst it might have been proportionate to disclose and publish a very small part of the Letter to rebut inaccuracies in the People Article, it was not necessary to deploy half the contents of the Letter as Associated Newspapers did. As the Articles themselves demonstrate, and as the judge found, the primary purpose of the Articles was not to publish Mr Markle’s responses to the inaccurate allegations against him in the People Article. The true purpose of the publication was, as the first 4 lines of the Articles said: to reveal for the first time [to the world] the “[t]he full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding”. The contents of the Letter were private when it was written and when it was published, even if the claimant, it now appears, realised that her father might leak its contents to the media.’

So what does this unqualified endorsement of the High Court’s judgment in Ms Markle’s case tell us about the state of privacy law in this jurisdiction? Well, first it tells us that the common law pendulum continues to swing increasingly in favour of the protection of privacy rights at the expense of media freedoms: whereas, once upon a time, the media’s ability to report on these sorts of issues may have gone unquestioned; today, judges are not only prepared to scrutinise reporting of this nature but, as we can see from the judgments in this case at first instance and on appeal, they have shown a willingness to use privacy laws to box in the media, and in a strikingly robust manner. Second, it tells us that the judges are keen to ensure that high profile individuals do not experience an automatic and comprehensive hollowing out of their privacy rights simply by reason that they are public figures, even where they themselves seek to use the media strategically to control their public image. Third, it tells us that defeating a privacy claim brought in a media context will require the most scrupulous focus on the particular information in issue, and the free speech justifications for publishing that information in particular, having regard to the particular contextual considerations relating to that information.

Are these outcomes which we should embrace? Needless to say, privacy campaigners will roundly welcome this judgment as a further important step on the road to ensuring a genuinely level playing field as between Article 8 and Article 10 rights. However, from the media’s perspective, this judgment will be regarded as deeply troubling, essentially on the basis that it seriously and wrongly skews the A8/A10 balance in favour of those powerful celebrities who are inclined to manipulate the media in their own self-interest. Whatever view one takes on the judgment, it is clear that, subject to an appeal to the Supreme Court, this is an important judgment which will shape the law in this area moving forward.

Anya Proops QC