17 Jan. 2021
Professor Brian Cathcart previews the Duchess of Sussex’s latest court hearing.
- The media expert reveals the series of other court cases that Associated News have lost recently.
- The Daily Mail and Mail on Sunday have also been forced into a string of embarrassing climbdowns after publishing false stories.
- Lord Rothermere’s papers have racked up substantial costs and damages after losing various actions.
- Ms Markle is suing Associated News after the MoS published a private letter that she sent to her father.
As it approaches an important round in its case against the Duchess of Sussex, the legal department of of Associated Newspapers, owner of the Daily Mail, has been going through a bumpy spell. Take a look.
- Just before Christmas Associated lost a court case and had to pay £83,000 damages to a Sussex man for breach of confidence and misuse of private information by MailOnline.
- Just before New Year the Mail on Sunday published a very embarrassing correction to a story about Prince Harry, the Duke of Sussex, and said it had made a donation to charity.
- Last Monday we learned that the Mail paid ‘significant’ damages to a Labour party candidate after falsely suggesting she helped Holocaust deniers.
- And also last week we have a statement in open court showing the Mail had to compensate a motorcyclist for unfairly reporting a court hearing.
These cases all come with substantial legal costs, usually considerably more than the damages, so Associated’s approach to legal matters is an expensive one. And bear in mind that the Prince Harry case is not over, so there are likely to be further damages and costs there.
All this bad news and expense for the company came as it was preparing for the next stage of by far its biggest case in terms of public profile and of cost: the complaint by Meghan, Duchess of Sussex, about the publication by the Mail on Sunday of parts of a letter she wrote to her father.
On Tuesday, lawyers for the Duchess will seek ‘summary judgment’ against the newspaper – in other words, they will ask the judge to find in her favour without a trial on the grounds that no adequate defence has been offered. Since this procedure will inevitably be misrepresented by the Meghan-hating corporate national press no matter what happens, it is worth making clear what is at stake.
The Duchess asserts that by publishing parts of a letter she wrote to her father, Thomas Markle, the Mail on Sunday broke the law in three ways: by misusing private information, infringing copyright and breaching the Data Protection Act. Her lawyers are now asking for summary judgment on all three counts and the judge may find against Associated on all three counts, on two or on one – or he may decide that the whole lot should go for trial.
Independent commentators consider that the Duchess’s case is a strong one (see here and here), especially on copyright, and a victory or partial victory for her would be no great surprise. Anything less than a complete victory for her, however, is certain to be presented by the Mail and its allies as a resounding defeat, while if she happens to win on all counts we will probably be told the judge is an enemy of the people and that 300 years of press freedom have come to an end.
The reality is that even if Associated succeeds in heading off summary judgement on all three counts it will have achieved nothing more than to prove its defence case is not complete bunk. In other words, all will still be to play for.
In the meantime that run of bad legal news for Associated – which has not been reported by any of the papers that purport to be its rivals – reminds us of something wider: this company’s lawyers are very busy people.
Recent analysis by the media law blog Inforrm shows that defamation claims against national newspapers are rare: only 21 were brought in 2020. (This is hardly surprising given the huge financial risks involved in suing.) But of those 21 cases almost half – 10 – were brought against Associated Newspapers.
It’s a small sample but it suggests one of two things: either Associated’s journalists are worse than others at checking their facts or its lawyers are more reluctant to negotiate settlements with people who complain. Or indeed both might be true, as a glance at the case of Danielle Hindley indicates.
Either way, you might think this pattern would be enough to concern IPSO, which bills itself as a press standards watchdog and was sold to the public as the toughest press regulator in the western world. Will IPSO investigate what is going on at the Mail? Of course not, because IPSO is a sham