THE DUCHESS of Sussex has won her privacy case against the Mail on Sunday after a judge said there were “compelling reasons” for it not to go to trial over its publication of extracts of a private letter to her estranged father, Thomas Markle.
Judge Lord Justice Mark Warby also found that Meghan Markle’s copyright was infringed by five articles, which included extracts of the letter, published in February 2019 in the Mail and Sunday and on Mail Online.
The world needs reliable, fact-checked, high-quality news. What The Mail on Sunday and its partner publications do is the opposite
— the Duchess of Sussex
He said: “It is undeniable that they reproduced a substantial part in qualitative terms, and in the sense that they reproduced a substantial part of ‘that which is the author’s own intellectual creation’.”
He added: “This is not one of those rare cases where freedom of expression trumps copyright. There is no basis on which the court could conclude that, although the copying was not fair dealing, the public interest required the copyright to be overridden.”
Following her victory, the Duchess thanked her husband Prince Harry, her mother, Doria Ragland, and her lawyer Jenny Afia, a partner at London law firm Schillings.
She 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.
“These tactics (and those of their sister publications MailOnline and the Daily Mail) are not new; in fact, they’ve been going on for far too long without consequence.”
The Duchess added: “I particularly want to thank my husband, mom, and legal team, and especially Jenny Afia for her unrelenting support throughout this process.”
However, Lord Justice Warby said a trial could still go ahead on limited parts of the copyright claim, after the Mail on Sunday’s lawyers claimed that authorship of the letter was not solely the Duchess’s, but potentially shared with Jason Knauf, her former communications secretary.
Although the judge described the Mail on Sunday’s factual and legal case on authorship issue as occupying “the shadowland between improbability and unreality”, he said it was not “fanciful”, and that the law allowed for it to be tested at trial.
It means evidence offered by staff on the Kensington Palace communications team, known as the ‘Palace Four’, about the processes by which the Duchess’s personal letter to her father was drafted, may yet be heard.
A legal source said: “The judge has offered his view that it is ‘not easy to identify a useful litigious purpose’ in a trial on the authorship issues in the copyright claim, which is obviously discouraging for the Mail on Sunday.
“It also suggests that after such a big win on the major issues in her case, it would be disproportionate to carry on, although that was not something the judge was allowed to consider in arriving at his judgment.”
The source added: “The problem for the Mail on Sunday is that on all the material parts of her copyright claim, Meghan has won and won well.
“If it now persists and succeeds in showing co-authorship, then it would only be increasing the number of people who could claim damages from it.”
On the Duchess’s claim for misuse of private information Lord Justice Warby’s judgment was emphatically in her favour.
Her lawyers had argued that the newspaper’s publishers, Associated Newspapers Ltd, had “no prospect” of defending her claims for misuse of private information and alleged breach of copyright.
They successfully argued her case was so strong a trial was unnecessary on those parts of her claim.
In her post-victory statement, the Duchess spoke of the impact of the Mail’s intrusions.
She went on: “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 more than truth, when moral exploitation sells more than decency, and when companies create their business model to profit from people’s pain.
“But for today, with this comprehensive win on both privacy and copyright, we have all won.
“We now know, and hope it creates legal precedent, that you cannot take somebody’s privacy and exploit it in a privacy case, as the defendant has blatantly done over the past two years.
“I share this victory with each of you – because we all deserve justice and truth, and we all deserve better.”
* A hearing on “next steps” has been set for March 2, 2021.
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