Harry & Meghan: Legal Actions against the Media

[HighGoalHighDreams]

Good for Meghan for winning. A lot of people thought she should have given up but I'm glad she stuck with her guns. This victory is not mentioned in the Mail (no surprise).

The article was in the Mail within a half hour, I believe, of the ruling, as the headline piece.

 

[eya]

The reaction of Meghan:

https://twitter.com/x/status/1359910297365012481

 

[ACO]

I think she will drop it now. This could potentially be very embarassing.

Drop what? Embarrassing? How? The MoS are the ones likely to push forward for a trial and based on the Judge’s own words, it is very much in Meghan’s favor.

It’s not officially official but she won.

 

[TLLK]

I think she will drop it now. This could potentially be very embarassing.

I agree that she's going to choose to drop it and would like to avoid a trial altogether.



Not surprised by the privacy ruling though and she must definitely feel some relief now.

 

[Tatiana Maria]

Shocked to hear it and frankly, beggars belief. I cannot believe for one second that a single word of that letter was written without every intention of its being published in full: in perfect, flowing calligraphy; with a second, also picture-perfect copy made; with extensive external input and advice (what private letter, unintended to be read by anyone else, would need it?); shared extensively to and fro, first with friends, then with book authors; and the all-telling slip on air with Omid, now admitted to having spoken with her, that she wrote it with the intent of sharing it.

I have some oceanfront property in Arizona that might interest the right honorable sir.

Regardless, the rule of law has spoken resoundingly in her favor and I cannot predict that the remaining issue will go to trial, nor that an appeal will be launched.

The judge did not make any conclusion one way or the other as to whether the claimant intended the letter to be published. But, citing recent developments in privacy law, he ruled that even if it could be proven at trial that the claimant intended to publish the letter, the defendant would fail to defend the claim on that basis (paragraphs 87 to 93 of the judgment).

He compared it to a case in which a celebrity couple's claim to breach of privacy regarding their wedding photographs was upheld, despite the fact that the couple had already authorized a magazine to publish photographs from the same wedding. (Note: I erroneously stated earlier that they were the same photographs.)

87. A separate line of argument, which came to the fore in the submissions of Counsel, involves reliance on the claimant’s alleged intention to publicise the Letter. [...]

88. [...] It is public knowledge, reported by the defendant itself, that the claimant is trained and expert in calligraphy. There is nothing very unusual in keeping a copy of an important letter. The defendant’s case, that the “only good” reason for sharing and discussing the Letter with the communications team before it was sent would be to use it to enhance the claimant’s image, is not easy to accept. A desire to receive public relations guidance and/or to guard against the risk of adverse publicity, if Mr Markle disclosed the letter, seem at least as plausible as explanations. [...] It is not possible to conclude with certainty that the disputed factual contentions could not be made good at a trial, or to say that the inferences relied on are unimaginable. But nor is it necessary for these disputes of fact to be resolved, because I am satisfied that this line of defence has no sound basis in law.

91. [...] Toulson & Phipps (above) at [4-027]-[4-035] states the modern position in the law of confidentiality: “It is … now settled that an intention to publish is not inconsistent with maintaining a right of confidentiality until the intended publication takes place.” See also The Law of Privacy and the Media at 11.50 – 11.52. [...]

93. One of the central features of Douglas was that authorised wedding photographs were due to appear shortly in OK! magazine. The claims of the celebrity couple were upheld at all stages, despite that fact. Douglas does indicate that an intention to publish may be “very relevant” to damages, but the Court held that “the fact that authorised photographs can be published will not provide a defence…”: [107]. [...]​

 

[QueenMathilde]

I wouldn't celebrate too soon. The paper is going to appeal.

 

[REAL COUNTESS]

Her sister Samantha wrote a book too, don't know if it is out yet?. Her father wants to write a tell all about her too. So maybe we can read about lawsuit #7 and #8, the story continue. It is really getting to be a bore. There are way more important things one should pay attention to, not this mess.(....)

 

[poppy7]

Drop what? Embarrassing? How? The MoS are the ones likely to push forward for a trial and based on the Judge’s own words, it is very much in Meghan’s favor.

It’s not officially official but she won.

The copyright issue over sole authorship. That could be quite the media hoo ha if the Kensington staff are asked to give evidence and it goes to trial.

 

[Curryong]

I am extremely glad for Meghan's sake that Justice Warby decided in her favour. An appeal is not likely to succeed as there is no way that publishing the letter to her father can be justified as being in the public interest, which formed the bulk of the newspaper group's supposed reason for publishing. Meghan and Harry are probably enormously relieved this has gone her way.

 

[QueenMathilde]

On a side note I'm embarrassed to admit that when I saw the name Justice Warby I thought "How convenient the judge's first name is "Justice" "

 

[Tatiana Maria]

The reaction of Meghan:

https://twitter.com/x/status/1359910297365012481

I'm unclear on what she meant by "the courts for holding Associated Newspapers and The Mail on Sunday to account for their illegal and dehumanizing practices" and "misinformation". As far as I can discern from the full judgment, the one-off action for which Associated Newspapers and The Mail on Sunday were held to account in this judgment was their publication of her letter to her father without her consent, and neither she nor the judge claimed that they misinformed their readers regarding the letter.

 

[MaiaMia_53]

There seems to be some confusion about the ruling. Meghan won on privacy and copyright claims. The March hearing is set to determine next steps re the awarding of damages in regard to the issue of copyright ownership, which is the 'shadowy fanciful' defense put forward by the Fail.

The judge instructed the Fail to inform the 4 palace individuals whom the Fail asserted have rights to ownership to make a claim if they so choose. Legal experts have been tweeting they doubt any claims will be made by the 4 former KP staffers in question. Plus the Fail, simply put, has lost. The judge allowed the Fail a lot of rope in this case even to them getting away with making money off of writing about the case in the early going, and making OTT discovery demands of Meghan and her team. None of that worked. The Fail is well and truly hung. If they wish to further tighten the noose they made for themselves by appealing the judgment, so be it. ?

The Fail and a number of other nefarious parties stared Meghan down with the gnarly discovery demands and constant negative articles and tactics. She never flinched. Neither did her husband.

 

[Curryong]

Justice Warby in another part of his judgement seems to regard any assistance given by Knauf or others at KP,in the composing of the letter as minor in the wider scheme of things as he put it. With this judgement IMO it would be difficult for this newspaper group to win on copyright issues.

'An electronic draft of the letter “would inevitably be held to be the product of intellectual creativity sufficient to render it original in the relevant sense and to confer copyright on its author or authors”.

He also found that the MoS’s articles “copied a large and important proportion of the work’s original literary content”.

The issue of whether Meghan was “the sole author”, or whether Jason Knauf, formerly communications secretary to the Duke and Duchess of Sussex, was a “co-author”, should be determined at a trial, despite being something “of minor significance in the overall context”, the judge said.

 

[Tatiana Maria]

The March hearing is set to determine next steps re the awarding of damages in regard to the issue of copyright ownership, which is the 'shadowy fanciful' defense put forward by the Fail.

Per the judgment, linked in eya's post, the issue of ownership is the one copyright issue which has not been adjudicated and will require a trial to settle.

Damages will certainly be awarded in regards to breach of privacy and infringement of copyright, the issues on which the claimant has been awarded summary judgment. A hypothetical ruling against the claimant on ownership would have the possible effect of "whittling down" the damages awarded (paragraph #167).

The judge instructed the Fail to inform the 4 palace individuals whom the Fail asserted have rights to ownership to make a claim if they so choose.

No, the judge instructed the defendant, Associated Newspapers Limited, to inform anyone it "maintains is or might be entitled to copyright" on the letter that he or she is "entitled to apply to be joined as a claimant or defendant to these proceeding" (paragraph #171).

The judge allowed the Fail a lot of rope in this case even to them getting away with making money off of writing about the case in the early going, and making OTT discovery demands of Meghan and her team.

I am not aware of any restrictions on making money off of writing about a legal case to which the writer is a party, nor did I see any mention in the judgment of "OTT discovery demands". Do you have a source for this?

 

[MaiaMia_53]

Reading the entire ruling might be helpful. The judge clearly stated that the Fail's decision to publish the letter and to go to 'excessive' lengths in analyzing Meghan's handwriting, etc., was illegal and not in the public interest.

Meghan won the case. The only matters that are outstanding: setting damages; determining whether the Fail is a glutton for punishment (or continue to feel they can make money off of prolonging the inevitable) by attempting to appeal; and clearing up whether anyone will come forward to join the copyright infringement claim.

It is my understanding that a trial would only take place to judge whether anyone else who decides to make a claim actually has a right to claim part ownership of the letter. If affirmative, any such persons would be entitled to a portion of the damages. But I don't think this case is going any further into that 'shadowy, fanciful' netherland.

 

[Tatiana Maria]

I am not aware of any restrictions on making money off of writing about a legal case to which the writer is a party, nor did I see any mention in the judgment of "OTT discovery demands". Do you have a source for this?

Reading the entire ruling might be helpful. [...]

I did read the ruling, hence my statement about not seeing any mention of "OTT discovery demands" (or restrictions on writing about the case) in the judgment. If I have overlooked it, I would appreciate having it pointed out.

It is my understanding that a trial would only take place to judge whether anyone else who decides to make a claim actually has a right to claim part ownership of the letter. If affirmative, any such persons would be entitled to a portion of the damages. But I don't think this case is going into that 'shadowy, fanciful' netherland.

The judge ruled that the defendant's arguments on ownership "occupy the
shadowland between improbability and unreality" (166) but "cannot be described as fanciful" (167). As noted in the judgment (13), an entirely "fanciful" case should and would not be permitted to go forward to trial.

 

[Curryong]

Whichever way it is sliced this judgement can't be regarded as anything other than a big win for Meghan and a big loss for the newspaper group. They should not have published any portion of Meghan's letter to her father. That's the crux of the matter.

 

[ACO]

The copyright issue over sole authorship. That could be quite the media hoo ha if the Kensington staff are asked to give evidence and it goes to trial.

I don't see how when the Judge himself said it was a small matter in the grand scheme. He already basically ruled in her favor. It would not be a trial the way you think. Meghan wouldn't have to appear. It would be their lawyers just appearing much like it has been now. Also it more about the damages awards. If members of the KP staff claim copyright (and lets be real, they will not) then it will lower the damagers. That really is all that is left at this point.

The real meat of the case was the privacy and Meghan won on all counts.

I wouldn't celebrate too soon. The paper is going to appeal.

They can appeal but the the likelihood of them winning it is very slim. The ruling called it unlawful and flat out stated that what they had already presented wasn't enough to convince the judge anything new would change his ruling.

I wouldn't rule out an appeal but my guess they will lick their wound and keep it moving.

Now it is about accessing the damages because apparently Meghan's lawyers are going after a percentage of profits the paper made from the stories about the letter. And since it was quite money this could end up being pricey.

So March 2 will be interesting.

 

[MaiaMia_53]

Regarding my 'rope' analogy, it's a matter of realizing that according to U.K. law, the copyright facts of the case were always straightforward in favor of Meghan. Therefore, some of the Fail's demands could have been disallowed. But the judge gave a lot of leeway. Some online theorists feel that as a result there's little ground now for any appeal, since practically everything requested by the Fail was allowed. In his ruling on behalf of Meghan for summary judgment, the judge's language in a number of instances is fairly harsh against the Fail.

Again, some people have questioned why the judge allowed some of the discovery demands, which seemed prying and excessive, but to which Meghan fully complied. In fact, the public learned factual information that actually supported Meghan in showing that she had made a number of attempts to help her father come to the wedding. Also that she and Harry had both made numerous attempts to reach her father by phone even after the photo set-up revelations. Those details that were revealed as a result of the Fail's discovery demands, completely contradicted assertions by Markle Sr, published by the Fail, and aired in TV interviews.

 

[Tatiana Maria]

Regarding my 'rope' analogy, it's a matter of realizing that according to U.K. law, the copyright facts of the case were always straightforward in favor of Meghan. Therefore, some of the Fail's demands could have been disallowed. But the judge gave a lot of leeway. Some online theorists feel that as a result there's little ground now for any appeal, since practically everything requested by the Fail was allowed. In his ruling on behalf of Meghan for summary judgment, the judge's language in a number of instances is fairly harsh against the Fail.

I concur with the assessment that the judge used fairly harsh language in a number of instances - although he never referred to the Mail on Sunday as "the Fail". For that reason, I would expect that he would have been critical of the Mail on Sunday's requests for information if they had been excessive as claimed by the online theorists you refer to.

They should not have published any portion of Meghan's letter to her father.

In practical terms that may be the case, but legally, the judge granted that "making allowance for editorial judgment I conclude that it was legitimate for this purpose to disclose paragraph [15]."

 

[MaiaMia_53]

No, the judge instructed the defendant, Associated Newspapers Limited, to inform anyone it "maintains is or might be entitled to copyright" on the letter that he or she is "entitled to apply to be joined as a claimant or defendant to these proceeding" (paragraph #171).

Right, exactly. This is the legal language you have helpfully cited. What I said was in essence the same thing, in layman's terms. There were only 4 people in question, brought up during hearings, so that's not a mystery. But obviously, anyone who wishes to come forward with a copyright claim for supposedly taking part in drafting the letter, can do so, if they are willing to endure a trial to decide any claim they pursue. I believe the former palace staffers in question have recently departed their palace employment. So, crickets is probably the option for these individuals.

I will be surprised if any copyright claims are made by any other parties. IMO one of the initial goals in some quarters was to get Meghan to drop the case. It would be rather curious to see any former palace employees attempting to prolong matters on the narrow issue of personal claims on their part, which the Fail/ Associated Newspapers ineffectually and 'fancifully' utilized as a defense.

 

[Curryong]

The Mail published much much more of Meghan's letter than one paragraph, (it featured in a whole double page spread in the MoS) and it's clear that Justice Warby came down on Meghan's side ref what they published. How any newspaper felt justified in doing what they did is mind blowing.

And I'm so glad she's won. Go Meghan!

 

[MaiaMia_53]

One thing is as clear as day: Meghan won. The significance of her win should not be discounted or downplayed. She did not decide to bring this case only to assuage her own hurt feelings and emotional pain. Like she said in her statement, this is a victory for everyone who suffers abuse at the hands of tabloid defamation and intrusiveness. I'm paraphrasing her words obviously.

... judge ruled that the defendant's arguments on ownership "occupy the shadowland between improbability and unreality" (166) but "cannot be described as fanciful" (167). As noted in the judgment (13), an entirely "fanciful" case should and would not be permitted to go forward to trial.

Ah, great. Thanks for the precise legal language which confirms that not everything in this case was 'entirely fanciful'. A lot of money was wasted IMO with Associated Newspaper's OTT tactics. In the end Meghan won.

 

[Tatiana Maria]

What I said was in essence the same thing, in layman's terms. There were only 4 people in question, brought up during hearings, so that's not a mystery.

I see, thank you for the clarification.

Like she said in her statement, this is a victory for everyone who suffers abuse at the hands of tabloid defamation and intrusiveness. I'm paraphrasing her words obviously.

She indeed referred to "misinformation" in her statement, but as I said in an earlier post, it does not appear that she put forward a claim of defamation in court.

Ah, great. Thanks for the precise legal language which confirms that not everything in this case was 'entirely fanciful'. A lot of money was wasted IMO with Associated Newspaper's OTT tactics. In the end Meghan won.

The precise legal language in regard to the primary test of whether the claimant is entitled to win on summary judgment was "fanciful" ("entirely" was my word):

13. Both parties have referred me to Lewison J’s classic exposition of the right approach to summary judgment [...] the seven key principles are these:

“i) The court must consider whether the [defendant] has a “realistic” as opposed to a “fanciful” prospect of success;

[...]​

 

[MaiaMia_53]

Meghan won her claims for intrusion of privacy and breach of copyright. The judge concluded:
"The claimant had a reasonable expectation that the contents of the letter would remain private. The Mail articles interfered with that reasonable expectation."

And the judge further ruled that there was no need for a full trial on the issue of privacy because no other decision would have been reached had one been held.

There were a lot of ins-and-outs and hearings and requests for discovery and arguments made in this case. The summary judgment details everything in legal language that is not easy to wade through for the average person. Most people have to lean on reliable reports and summaries, and even then some details might not be fully understood by everyone. I have a background as a paralegal, so I have a good grasp of the actual legal wording in the judgment and what it means. But it is convoluted, weighty and detailed, which is what the law requires (a big reason why going to law school and passing the bar exam is not a breeze).

Meghan didn't mention 'defamation' in her statement. As I said earlier, I paraphrased her words. Part of what she actually said:
"After two long years of pursuing litigation, I am grateful to the courts for holding Associated Newspapers and The Mail on Sunday to account for their illegal and dehumanizing practices."

"For these outlets, it’s a game. For me and so many others, it’s real life, real relationships, and very real sadness. The damage they have done and continue to do runs deep. The world needs reliable, fact-checked, high-quality news. What The Mail on Sunday and its partner publications do is the opposite..."

"We all lose when misinformation sells... For today, we have all won."

"I share this victory with each of you – because we all deserve justice and truth, and we all deserve better."

Thanks to @eya for providing a link earlier to Meghan's full statement:

https://twitter.com/x/status/1359910297365012481

You questioned aspects of Meghan's statement earlier, Tatiana Maria. The fact that Meghan won the case is surely the main thing that matters to her at this point. I believe she has a right to express however she feels about the win, which does not have to match precise legal wording in the summary judgment.

As well, despite basing my opinions and interpretations on the facts of the case, I am not adhering to using the exact legal language in my overall assessments. The summary judgment is there to be read, and there are accurate, unemotional reports available, along with the actual judgment. Thanks for your precision.

Meanwhile, I stand by my belief that the Fail/Associated Newspapers/Mail Online/Mail on Sunday have been egregious, uncaring and purposely harmful in their intent and in their actions from beginning to end. I hope this case will set a positive precedent in rolling back at least some of their damaging practices. Whatever monetary damages are assessed, it is certain that the money will go to a good cause, which means a lot in the battle against devastating injustices and tabloid abuses.

https://www.judiciary.uk/wp-content...s-of-Sussex-v-Associated-2021-EWCH-273-Ch.pdf

 

[camelot23ca]

The article was in the Mail within a half hour, I believe, of the ruling, as the headline piece.

A headline is a headline! By the metrics that matter to them the Mail has done well out of all of this. I’m sure they would have liked to have been able to go to trial to draw things out even more but I doubt the paper feels it’s lost. Even if Meghan is awarded very generous damages I think deciding to publish the letter and then take the issue as far as possible through the courts instead of reaching a settlement will turn out to have been a very good business decision on the part of The Mail.

 

[MaiaMia_53]

... In practical terms that may be the case, but legally, the judge granted that "making allowance for editorial judgment I conclude that it was legitimate for this purpose to disclose paragraph [15]."

But more pertinent, below is the main conclusion by the judge in regard to the above specifics of the Fail/ANL/MOnline/MOS defense:

"The only tenable justification for any such interference was to correct some inaccuracies about the letter contained in the People article. On an objective review of the articles in the light of the surrounding circumstances, the inescapable conclusion is that, save to a very limited extent, the disclosures made were not a necessary or proportionate means of serving that purpose.

"For the most part they did not serve that purpose at all. Taken as a whole the disclosures were manifestly excessive and hence unlawful."

To your below point @Tatiana Maria:

"I am not aware of any restrictions on making money off of writing about a legal case to which the writer is a party."

I am not referencing any legal decision or precedent in stating my opinion (which many other observers agree with) that the Daily Fail was blatantly out of line in prejudicially writing about an ongoing case for the purposes of making money while attempting to make Meghan look bad, thus adding insult to injury over the course of the suit's preliminary hearings.

Thankfully, it appears that at some point, the Fail may have been warned to cease blatantly writing about aspects of the case. In particular, when Meghan and her attorneys requested that the case be delayed for confidential reasons, the judge warned that releasing any of the confidential details to the public would result in contempt of court.

Honestly, it was an egregious and uncaring decision by the Fail to print the letter and to not meet Meghan's original demands from the outset. The Fail's behavior and decisions are clearly not and have never been in the interests of humanity at large.

 

[Curryong]

A headline is a headline! By the metrics that matter to them the Mail has done well out of all of this. I’m sure they would have liked to have been able to go to trial to draw things out even more but I doubt the paper feels it’s lost. Even if Meghan is awarded very generous damages I think deciding to publish the letter and then take the issue as far as possible through the courts instead of reaching a settlement will turn out to have been a very good business decision on the part of The Mail.

It depends on what sort of damages Meghan's legal team seeks. They may ask for some of the profits the Fail have made out of participating in this saga.

And even so, is this behaviour the way any business organisation should choose to operate? No credibility, no ethics or honour, no caring factor, no matter who gets hurt in the process. Wonderful I'm sure! Really makes one long to be a journalist!

 

[AC21091968]

I know this is off-topic, but COVID-19 has not significantly impact the number of filed Court Cases involving the Press.

At the same time as Justice Warby gave his verdict, The Spectator won a case in Edinburgh's High Court on the on-going Alex Salmond inquiry. In other words, The Spectator was granted by Lady Dorrian that documents on Salmond's submission should be fully published.

https://www.spectator.co.uk/article/why-the-spectator-went-to-court
https://www.thenational.scot/news/1...court-win-see-alex-salmond-ordered-committee/
https://www.theweek.co.uk/951950/co...salmond-court-case-bring-down-nicola-sturgeon

The Spectator (right of centre political magazine) has also been very critical of Harry and Meghan, however, unlike the Mail, it's mainly opinion columns based on news/stories surrounding the Sussexes. There is hardly any new revelation. This publication is also very pro-freedom of press, freedom of speech and libertarian, as mentioned in the article above. As mentioned earlier, I don't think suing a subscription-based publication is a good idea, given that it's sales has been going up since 2018, compared to other competitors.
https://pbs.twimg.com/media/EteUjENXUAMEhGh?format=jpg&name=small

After the Justice Warby's decision on issuing summary statement, rather than full trial, The Guardian (Left-leaning anti-monarchist newspaper) has released an article on the implication of Meghan's court case on the Media (not just the Daily Mail). It presented both side of the argument in terms of the significance rather than claimant v.s. defendant.

Could Meghan ruling stop the media using leaked documents?
Analysis: legal experts divided over significance of duchess’s win against Mail on Sunday
https://www.theguardian.com/uk-news...-ruling-stop-the-media-using-leaked-documents

Richard Palmer has tweeted and included this article

Richard Palmer @Royalreporter
Replying to @Royalreporter
The debate about the wider implications of this case is just beginning. The BBC, Guardian, Times and Telegraph are among those who have asked whether it will damage the media’s ability to use leaked documents where there is a public interest.
8:14 PM · Feb 12, 2021·Twitter for iPhone

Richard Palmer @Royalreporter
Replying to @Royalreporter
Several experts always believed the copyright argument was difficult for Associated after its earlier defeat over using Prince Charles’s letter about China. But on @BBCr4today earlier @MarksLarks argued this case may lead to leakers going to the US media rather than the UK.
8:19 PM · Feb 12, 2021·Twitter for iPhone

Richard Palmer @Royalreporter
Replying to @Royalreporter
The UK currently ranks higher than the US in the index of world press freedom. Will this case and a growing number of privacy rulings in favour of public figures damage press freedom here?
https://en.m.wikipedia.org/wiki/Press_Freedom_Index
8:22 PM · Feb 12, 2021·Twitter for iPhone
​

https://twitter.com/x/status/1360155278189199368

Like The Spectator article (despite the court case being completely different), "freedom of press" continuing gets mentioned. In contrast, The Guardian was focusing more on the PR and celebrity aspects.

I also found a Telegraph article written by Camilla Tominey on the public v.s. private aspect of the Royal Family and how the debate has been in happening throughout history. (Behind paywall)

The royals aren't public property – and neither are their private exchanges with loved ones
Members of the House of Windsor have long argued that they reserve the right to a private life despite having to endure intrusion
https://www.telegraph.co.uk/royal-f...lic-property-neither-private-exchanges-loved/

Edited: I have included The Guardian article, after Richard Palmer has tweeted and attached it. I have also added The Telegraph article by Camilla Tominey. I apologise for the multiple attempts in editing.

 

[Princess Luna]

I'm absolutely thrilled that Meghan von her case. It's the right step in protecting the right to privacy!