The newspaper group the Duchess of Sussex is suing in what may be a bruising show-trial has a weak case, and in normal circumstances its lawyers would tell it to give up and settle. But Associated Newspapers is not a normal defendant. Brian Cathcart looks at the forces motivating it to fight on.
SO ROUND one of the case of Meghan, Duchess of Sussex, versus the Mail on Sunday went to the newspaper. It is a defeat she can afford and it sheds little light on the most intriguing question about this sensational lawsuit, which is this: what does the newspaper hope to achieve?
We know what the Duchess wants. She wants to show that in publishing large parts of a personal letter she wrote to her father at a difficult time, the Mail on Sunday broke the law. The Mail papers routinely abuse and insult her in ways they know she can do nothing about, but on this occasion she believes she has caught them going too far and wants them punished.
That is a reflex that most of us can surely understand. But what about the Mail on Sunday? Or rather, what about Associated Newspapers, the corporation that owns the Mail on Sunday as well as the Daily Mail, the UK Metro titles and the global brand Mail Online?
You might say that the obvious answer is that Associated wants to vindicate its journalism in court, but there is a problem with that. It has a weak case. In particular it is hard to see how it can win on copyright, where the law is pretty straightforwardly in the Duchess’s favour, while on ‘misuse of private information’ the best arguments mustered so far by Associated’s lawyers look very like ones that have been rejected by the courts before. For more on this, read here.
So, while it is usually unwise to second-guess the English courts in such matters, this looks very like one of those cases where lawyers on the defence side would usually advise their client to try and settle out of court.
Associated Newspapers has not done that and seems to be adopting the opposite position of belligerence and defiance, puffing itself up last week as if it had already won.
Why is it ploughing ahead? A variety of explanations suggest themselves, and it seems likely that a mixture of some or all is at work. Let’s look at them.
- A gamble
The first possible explanation, obviously, is – heck, why not?
For most defendants the biggest factor now would be money – the cost of an action such as this can run into millions of pounds – but Associated does not have to worry about such things. A rich company owned by a billionaire, it has the deepest possible pockets, so it can take a very different view from most defendants of what kind of odds are worth gambling on.
And we know that Associated is not remotely concerned about damages. The English courts do not award large sums of the kind seen in some American courts: £100,000 would be considered high in this case and to Associated that is pocket money.
2. A bluff
By showing signs that it means to fight all the way, Associated may be trying to frighten the Duchess into backing down.
It is far easier for a large, faceless corporation which is thoroughly accustomed to acrimonious litigation to hold its nerve in such situations than it is for any individual litigant, even someone a famous and well-off as the Duchess.
This will be her first experience of the English courts, and while her husband clearly backs her she does not have the comfort of support from Buckingham Palace. If the case comes to trial, moreover, she will almost certainly be cross-examined in the witness box by Associated’s counsel, as might some of her closest friends. She would not be human if this did not cause her doubts and fears, and Associated may well be hoping those will prey on her.
(Thus far there is no sign of the Duchess faltering. On the contrary, the recent statement https://news.sky.com/story/meghan-and-harrys-letter-to-the-tabloids-in-full-11975797 issued by lawyers for her and her husband about relations with UK tabloids gave the strong impression they were up for the fight.)
The UK press as a whole is a stranger to self-doubt, but even in that company Associated stands out as a corporation with a peculiarly stubborn sense of its own rightness about everything. That may well be at work here.
Indeed, what the law says may not be a factor at all, because traditionally, if the law disagrees with the Mail, the Mail takes the view that the law is wrong. Add to this the Mail’s perception of itself as the embodiment of ‘freedom of the press’, meaning that any challenge to the Mail’s judgement or actions is perceived as a challenge to democracy itself, and you have something very powerful.
Thus blinkered from reality, Associated may be prepared to pay any price and take on any odds in its determination to vindicate its decision to print the Duchess’s letter – not least because that decision forms part of an editorial policy which holds that its papers are entitled to bully royalty when they choose.
Slight as she is, the Duchess combines a great many attitudes and attributes that the Mail papers abhor. Because she is American, because she is a divorcee, because she has had a successful career, because (yes) she is mixed race, because she is ‘uppity’ and has a mind of her own, because she expresses mildly liberal views (about, for example, being a woman and being a mother), and most of all because she has refused to conform to the model of royal wifeliness that the Mail papers believe they have a right to expect and enforce – they simply hate her.
The depth of this hatred can be measured in column inches of reporting and comment that often seems to border on the insane, and it is plain that they see themselves as engaged in a campaign either to bring her to heel or to bring her down. So we should probably not expect Associated to conduct itself as a rational defendant would; for them this is simply one part of a longer conflict they regard as of vital importance.
5. A message to others
For Associated, the courts are as much about power as they are about what its journalists may and may not do. The most vivid expression of this was its war against Andy Miller, a businessman wrongly accused of corruption by the Daily Mail. Miller only sued when his offer of a fairly cheap settlement was refused.
He won, but not before Associated had demonstrated that it was prepared to take a weak case through every court it could find over a period of six years, ramping up legal costs totalling more than £3 million. This wasn’t just a trial of the facts; it was Associated showing the world that if you sue it, it is ready to go all the way, no matter what.
That was six years ago. At any given time there are probably quite a few people considering legal action against Associated titles, and some already on the path towards court. Just as with Miller, by adopting the most aggressive stance possible in its very public case against the Duchess, even when its case is again weak, Associated sends a signal to those potential litigants to think twice.
6. The ultimate clickbait
Could it be that Associated is laying on a PR show, with itself in a starring role?
A trial in which a prince and a duchess give evidence would be unprecedented, and the couple are recognised around the world. Associated may also be ready to put the Duchess’s father in the witness box to testify against her, with all the sensational juicy insights that might yield.
It would undoubtedly be one of the British media events of the decade (although it would not be televised). And there, at the centre of all the arguments, mentioned in every news article and broadcast report, would be the Mail on Sunday.
It might not be the most flattering picture of Associated Newspapers journalism that emerged – and indeed, the Sussexes’ global army of admirers would probably not be impressed – but if Associated take the old-fashioned PR man’s view that there is no such thing as bad news they might well relish the prospect.
7. Winning and losing
Finally, but perhaps most importantly of all, there is the matter of what constitutes victory or defeat for Associated, a powerful media organisation that seems capable of persuading not just its own readers but also most of the rest of the UK media that black is white and two and two make five.
We had a glimpse of this last week when the Mail announced that the first ruling in the case was ‘a massive setback’ for the Duchess. No doubt she was disappointed, but assuming she was properly briefed at the outset by her lawyers she can hardly have been worried. The ruling makes no substantive difference to her central claim that copyright and privacy rights were breached.
The ‘massive setback’ headlines remind us that Associated can lose this case and still declare victory without being mocked for its idiocy. It can count on most of the UK national press to follow its lead, which usually means that the broadcast media do the same. How could it manage that? Let’s look at a possibility.
In responding publicly to the Duchess’s original complaint the company professed itself especially affronted by the assertion that the Mail on Sunday had misled readers by quoting selectively from the letter. Why did it single out this one allegation among many – a lesser one compared with the allegations of breaking copyright law and breaching privacy? It may have been laying down a marker.
Say it loses the case on the key counts but – as is possible – the court finds the claim of selective quotation unproven, Associated may then claim vindication. That, it could say, was all that ever mattered to it, and thus it would justify emblazoning victory headlines across the front page.
Another option always open to the Mail papers is martyrdom. If Associated loses it will certainly not acknowledge any failure of its editorial standards; instead it will probably package the result as yet another outrageous affront to the ‘freedom of the press’. Tendentious arguments intended to justify the Mail on Sunday’s actions will be trotted out over page after page, irrespective of whether they have been dismissed as nonsense by the judge.
And readers will be told that the true meaning of the adverse judgment is that no newspaper can ever report anything about anybody famous again, that the courts have overreached themselves and that Britain is being dragged backwards into a Dark Ages of information control.
What motivates the Mail on Sunday and its owners? Probably, on the basis of their record and their declared attitudes, a mixture of the above.
It is evident that these are not ordinary defendants, and not only in the ways described above. Remember that, unlike the Duchess, the individuals involved in Associated’s decisions, and in the editorial decision to publish the letter in the first place, almost certainly have nothing personal at stake here. They are able to hide behind the corporate facade, so that we never know their names. And since Associated believes Associated can do no wrong, as individuals they are immune from consequences whatever happens in court.