A chilling blow to free speech: Even after Meghan Markle admitted she misled court, judges refuse trial over publication of letter to her father
- Appeal judges ruled in favour of the Duchess of Sussex in a privacy dispute
- Court of Appeal upheld a High Court decision Meghan had a ‘reasonable expectation of privacy’ over a letter written to Thomas Markle
- Judges threw out an appeal by The Mail on Sunday and said a ‘lapse of memory’ by the duchess that led to her apologising did not affect the decision
- But lawyers and media experts said the decision had set a ‘dangerous precedent’ by extending the right of privacy to benefit the ‘rich and powerful’
Legal experts warned of a chilling effect on freedom of speech yesterday after appeal judges ruled in favour of the Duchess of Sussex in a privacy dispute with a newspaper.
The Court of Appeal upheld a High Court decision that Meghan had a ‘reasonable expectation of privacy’ over a letter written to her estranged American father, Thomas Markle.
The judges threw out an appeal by The Mail on Sunday and said that an ‘unfortunate lapse of memory’ by the duchess that led to her apologising to the court did not affect the decision.
During a lengthy legal battle, the newspaper has defended its right to publish extracts of the correspondence in February 2019.
Meghan, 40, yesterday used the court victory to launch an attack on the Press, saying the judgment should lead to a ‘reshape’ of the ‘tabloid industry’.
But lawyers and media experts said the decision had set a ‘dangerous precedent’ by extending the right of privacy to benefit the ‘rich and powerful’.
The Court of Appeal upheld a High Court decision that Meghan Markle (picutred) had a ‘reasonable expectation of privacy’ over a letter written to her estranged father Thomas
Matthew Dando, a partner at law firm Wiggin, said the judgment raised ‘very concerning consequences for freedom of expression’.
He said: ‘By preventing key evidence being heard regarding the preparation of the duchess’s letter and its intended audience, the Court of Appeal has presumptively elevated the duchess’s privacy rights over matters of public interest and freedom of expression.
‘This decision heightens concerns that privacy laws permit public figures selectively to determine what can be reported about them and manipulate the media narrative.
‘It also sets a dangerous precedent that anyone arguing against that status quo may not even be entitled properly to test the claimant’s evidence in court.’
Mark Stephens, a media law expert and partner at law firm Howard Kennedy, said the court appeared to have ‘shifted the boundaries’ as to what is a reasonable expectation of privacy.
He said: ‘Their ruling suggests it doesn’t matter whether she intends or doesn’t to put information in the public domain, she has a right to privacy irrespective.
‘Essentially that leads us to a point where the rich and powerful are able to have their PR firm put forward a primped and preened image where it is incredibly difficult for news organisations to put forward an unvarnished, alternative narrative.’
He added: ‘There is a good, solid argument that the Mail on Sunday had a right to at least have a trial to have disclosure, to cross-examine witnesses and also for Meghan to do the same and test the evidence. She has now had the right to portray herself in this way without a trial.’
David Yelland, a former editor of The Sun newspaper who now runs communications company Kitchen Table Partners, described Meghan’s attack on the Press as ‘extraordinary’.
‘There will be powerful people who have looked at this judgment and will be delighted,’ he said.
‘There is no doubt privacy in the last ten years has gone the way of the powerful.’
Judges threw out an appeal by The Mail on Sunday and said an ‘unfortunate lapse of memory’ by the duchess (pictured with Harry) that led to her apologising did not affect the decision
The case was discussed in the House of Commons yesterday after Scottish Nationalist MP Martin Docherty-Hughes asked Jacob Rees-Mogg, Leader of the House, if he would congratulate the duchess.
Mr Rees-Mogg replied: ‘It is concerning that the rich and powerful can use the court to protect their private life when others can’t. I would be deeply concerned about anything that undermines freedom of speech.’
Tory MP John Whittingdale, the former culture secretary and ex-chairman of the culture select committee, said: ‘That the courts are interpreting the law to extend the right to privacy without parliament properly considering what should happen is a matter of great concern. This has been a concern for a long time.’
The duchess launched her case against The Mail on Sunday after claiming that the ‘personal and private’ handwritten note she sent her father after her 2018 wedding to Prince Harry should have remained confidential.
She claimed that publishing parts of it had also infringed her copyright. The Mail on Sunday, the Daily Mail’s sister paper, had challenged an earlier High Court ruling by Lord Justice Warby which handed victory to Meghan in a ‘summary judgment’ in February without a trial being held.
But Court of Appeal judges Sir Geoffrey Vos, Dame Victoria Sharp and Lord Justice Bean upheld the decision yesterday. They said the contents of Meghan’s letter were ‘personal, private and not matters of legitimate public interest’.
Associated Newspapers, which publishes The Mail on Sunday, said it was considering appealing the decision at the Supreme Court.
It had argued that Meghan wrote the letter knowing it was likely to enter the public arena, pointing out that details were subsequently leaked to the authors of a gushing biography of the Sussexes called Finding Freedom.
The Mail on Sunday said its articles gave Mr Markle a right of reply to damaging and false claims that had been made about him when information about the letter was earlier briefed to People magazine in the US by Meghan’s friends.
The magazine first revealed the existence of the letter publicly in a way favourable to Meghan and which accused Mr Markle of ‘cruelly cold-shouldering’ her before her wedding.
Lawyers for Associated Newspapers argued that the People article misrepresented the note the duchess sent to her father as a loving letter and an attempt at reconciliation when it was no such thing.
This is a victory not just for me, but for anyone who has ever felt scared to stand up for what’s right.
While this win is precedent setting, what matters most is that we are now collectively brave enough to reshape a tabloid industry that conditions people to be cruel, and profits from the lies and pain that they create.
From day one, I have treated this lawsuit as an important measure of right versus wrong. The defendant has treated it as a game with no rules.
The longer they dragged it out, the more they could twist facts and manipulate the public (even during the appeal itself), making a straightforward case extraordinarily convoluted in order to generate more headlines and sell more newspapers – a model that rewards chaos above truth.
In the nearly three years since this began, I have been patient in the face of deception, intimidation, and calculated attacks.
Today, the courts ruled in my favour again – cementing that The Mail on Sunday, owned by Lord Jonathan Rothermere, has broken the law.
The courts have held the defendant to account, and my hope is that we all begin to do the same. Because as far removed as it may seem from your personal life, it’s not. Tomorrow it could be you.
These harmful practices don’t happen once in a blue moon – they are a daily fail that divide us, and we all deserve better.
THE MAIL’S RESPONSE
We are very disappointed by the decision of the Court of Appeal.
It is our strong view that judgment should be given only on the basis of evidence tested at trial, and not on a summary basis in a heavily contested case, before even disclosure of documents.
No evidence has been tested in cross-examination, as it should be, especially when Mr Knauf’s evidence raises issues as to the Duchess’s credibility.
After People magazine published an attack on Mr Markle, based on false briefings from the Duchess’s friends wrongly describing the letter as a loving letter, it was important to show that the letter was no such thing.
Both the letter and People magazine also seriously misrepresented the reasons for Mr Markle’s non-attendance at the royal wedding.
The articles corrected these matters, and raised other issues of public interest including the reasons for the breakdown in the relationship between the Duchess and her father.
We are considering an appeal to the Supreme Court.
They said the High Court judge had failed to assess the additional evidence that could come out in a full trial, which could have seen the duchess cross-examined.
But dismissing the appeal, Sir Geoffrey said: ‘It was hard to see what evidence could have been adduced at trial that would have altered the situation.’
The 31-page Court of Appeal judgment said it may have been proportionate for the Mail on Sunday to ‘disclose and publish a very small part of the letter to rebut inaccuracies in the People article’.
However, it said it was ‘not necessary’ to publish half of the letter’s contents across five articles.
The judgment concluded: ‘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.’
Meghan’s legal team had opposed the appeal, arguing that the High Court reached the right conclusions on the evidence before it previously.
During court hearings last month, a former senior royal aide provided new evidence that showed the letter had been sent to Mr Markle ‘with public consumption in mind’.Messages between Jason Knauf, the Sussexes’ former communications chief, and Meghan showed that she had ‘obviously’ known it could be disclosed.
Andrew Caldecott QC, for Associated Newspapers, told the Court of Appeal that Mr Knauf’s evidence showed her privacy case was based on a false premise.
Meghan later apologised to the court for failing to remember she told Mr Knauf to brief the authors of the Finding Freedom biography.
The duchess, who previously insisted she and Harry did not co-operate with the two writers of the book, said she had ‘forgotten’ that she provided details of what to reveal.
Despite acknowledging that the issue was ‘at best an unfortunate lapse of memory on her part’, the Court of Appeal yesterday found that it had no bearing on the grounds of appeal.
A spokesman for Associated Newspapers said: ‘We are very disappointed by the decision of the Court of Appeal.
‘It is our strong view that judgment should be given only on the basis of evidence tested at trial, and not on a summary basis in a heavily contested case, before even disclosure of documents.
‘No evidence has been tested in cross-examination, as it should be, especially when Mr Knauf’s evidence raises issues as to the duchess’s credibility.’
QUESTIONS THAT SHOULD HAVE BEEN HEARD IN COURT
Last month, Meghan was forced to apologise to the Court of Appeal when it emerged she had briefed the authors of a flattering biography – after initially suggesting she had not.
Lawyers for the Mail on Sunday, the Daily Mail’s sister paper, yesterday said such issues raise questions over her credibility – and argued the evidence should be tested in a full court hearing.
Here, the Mail analyses ten questions which could be answered at a full trial:
1. Did Meghan brief the friend who spoke to People magazine about the contents of her letter to Thomas Markle, her father? The extract summarised to the magazine read: ‘Dad, I’m so heartbroken. I love you. I have one father. Please stop victimizing me through the media so we can repair our relationship.’ The friend also suggested in the magazine that Mr Markle had cold-shouldered Meghan before her wedding and lied about his daughter shutting him out of her life.
2. Did that friend also brief the authors of the biography, Finding Freedom, to the same effect?
3. How was the People interview set up? Did Meghan know about it – and did she authorise it?
4. During legal proceedings, Meghan said that she authorised somebody to speak to the authors of Finding Freedom and tell them about the letter to her father asking him to stop speaking to the media. Who was that person, what did Meghan tell them and what exactly did that person then tell the authors?
5. What other information was provided to the authors of Finding Freedom about Meghan’s relationship with her father?
6. Jason Knauf, Meghan and Harry’s former communications chief, stopped working for the couple in March 2019. In a witness statement he says he is not aware whether cooperation with the authors of Finding Freedom continued after he departed. Did it and if so what happened?
7. Former Sussex adviser Samantha Cohen, deputy communications director Christian Jones and PR guru Sara Latham confirmed via lawyers last month that one or more of them had evidence about the writing of the letter to Thomas Markle – and whether Meghan anticipated it might come into the public domain. What would their evidence have been at trial?
8. Who are the senior royals who spoke to Meghan about how to handle the issue of her father speaking to the Press?
9. Crucially, why did Meghan not go to see her father as allegedly advised by the royals? Such a move could have avoided the need for a letter to be sent.
10. Why did Meghan not complain to People magazine about its account of her letter to her father, which she later accepted was inaccurate. Why did she not make a public statement to correct these matters?
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