IN THE TENTH PART OF OUR SERIES ON CRIME AND MALPRACTICE AT THE DAILY MAIL AND MAIL ON SUNDAY, PRESS STANDARDS CAMPAIGNER PROFESSOR BRIAN CATHCART CASTS A CRITICAL EYE ON ASSOCIATED NEWSPAPERS’ DEFENCE TO PUBLISHING MEGHAN MARKLE’S LETTER TO HER FATHER…
IMPORTANT legal advice: if you are writing a letter and you would rather the contents didn’t become public knowledge, be sloppy. Don’t worry about ink-blots and crossings-out, and if there is a coffee stain on the page, all the better. The mess will help protect your privacy.
This isn’t my advice. It is the inescapable implication of paragraph 13.7.1 of a document drawn up by a group of eminent lawyers on behalf of the owners of the Mail on Sunday.
The newspaper, you will recall, published parts of a letter from Meghan Markle, the Duchess of Sussex, to her father, and she has sued for misuse of private information, breach of data protection rights and infringement of copyright. The case has reached the point where the paper has to spell out how it will justify its actions, and the resulting document is a cracker, with paragraph 13.7.1 its most eye-catching element.
In it the Mail lawyers claim that the Duchess’s letter, far from being a private and personal communication, was actually meant to be disclosed to the public – and as proof of this it declares: “It is apparent from the Letter that the Claimant [i.e. the Duchess] took great care over its presentation. The Letter appears to have been being immaculately copied out by the Claimant in her own elaborate handwriting from a previous draft. There are no crossings-out or amendments as there usually are with a spontaneous draft. It is to be inferred also from the care the Claimant took over the presentation of the letter that she anticipated it being disclosed to and read by third parties.”
No really. That’s what it says. And this is signed by not one but two QCs, Anthony White and Adrian Speck, as well as a prominent media solicitor, Keith Mathieson, all acting on the instructions of the Mail’s owners – ultimately Lord Rothermere. They are genuinely asserting here that when you produce a tidy letter it is a sign you want to share its contents with the whole world.
And the next paragraph is almost as surprising, for it cites as further evidence of the Duchess’s expectation that her letter would be made public the fact that in the text she presented her own conduct “in the best possible light”.
So remember that too: if you want your correspondence to stay private, slag yourself off in it.
And then, to cap it all, there is this: “The Claimant kept a copy of the Letter. It is to be inferred she did so in order that she could use it herself, including by disclosing its contents.”
You have to wonder here whether Messrs White, Speck, Mathieson and indeed Rothermere keep copies of their own correspondence (and something tells me they do). Because by their own logic, in doing so they are demonstrating a wish to see it all cast into the public domain. We should be so lucky.
Alas, laughable though it is in parts – and you can read more here – the defence document is mostly sinister and devious in a manner that is customary with the Mail papers when, as they very often do, they drag their unpleasant baggage through the courts.
Two themes dominate, of which one is the right of Mail newspapers to know and publish whatever they want. It’s an old line: the taxpayers enable royalty to live the high life so it’s only right that the press should be able to publish any of their letters they can get their hands on. In this thinking, the royal family are a kind of Truman Show and we have all bought tickets that entitle us to watch as they argue, eat, have sex, go to the lavatory and whatever.
Among the many problems with this argument is hypocrisy. After all, neither Lord Rothermere (widely reputed to have non-dom status) nor his newspapers (ultimately registered in Bermuda) are exactly at the front of the queue in helping us taxpayers meet all those onerous royal bills.
More important, though, is the simple point that in law a newspaper needs a compelling public interest justification for breaching the privacy of any individual, royal or otherwise, and the Mail on Sunday’s lawyers seem to be in real difficulties contriving one here.
The best they can do is insist that the letter in the case sheds light on why the Duchess’s father missed her wedding and on the nature of her relationship with him, and in turn on whether her public image diverges from the reality. Now while it is obvious that some people find such questions fascinating, it is equally obvious that they do not actually matter. And for all our sakes it is absolutely vital that these things should have to matter before someone’s right to privacy may be breached. Just imagine it was your letter.
Judges in these cases apply a public interest test. They ask whether publication contributes to the discussion of a matter of genuine public importance – for example national security, crime and justice or government policy. If the answer is yes, publication might be justified; if no, it is probably not justified.
Now remember that we are talking about a personal communication, concerning their personal affairs, between the wife of the man who is sixth in line to the throne (and who therefore will never, ever become king) and her father, who is an ordinary American citizen living in the United States. It is very hard to see how it can be a matter of genuine public importance.
The case advanced in the Mail document looks to me like an attempt to befuddle a judge into thinking the letter matters simply because there was a fuss about the Duchess and her father, and because the Duchess is a figure of controversy. But this kind of justification simply can’t be relied on, because both the fuss and the controversy were largely manufactured by the press.
If a fuss alone is allowed to become the public interest justification, as the Mail lawyers seem to imply it should, then all the press has to do to get its way in future is to make a fuss. That way it could conjure up a ‘right’ to invade privacy whenever it liked. Were a judge to accept such an argument, nobody’s private correspondence would be safe.
The other theme of the defence document is more insidious. It is quite clear that the Mail on Sunday wishes to exploit this affair to create a public spectacle and to intrude farther into the lives of the Sussexes. At every possible opportunity the defence document seeks to stir up muck and draw in others in ways that have no credible bearing on the real issue.
It looks from this as though the paper knows its defence is weak but is preparing to conceal a possible defeat in a fresh cloud of indignant headlines about the private life of a woman who is suing it for breaching her privacy.
No court should allow itself to be exploited for such purposes.