By Brian Cathcart
THE PUBLISHERS of the Mail on Sunday will appeal next week against their humiliating defeat in the copyright and privacy case brought by Meghan, the Duchess of Sussex.
The Duchess sued and won in the London High Court after the paper had published substantial extracts from a letter she wrote to her estranged father, Thomas Markle. Associated Newspapers will challenge that judgment in the Court of Appeal in a hearing starting on Tuesday and set to last three days.
Whatever the outcome (and we will probably have to wait a week or two for the judgment), the newspaper company cannot be vindicated at this stage for its decision to publish; the best it can hope for is that the case might be sent back to the High Court to be heard in a full trial.
Victory for the Duchess, on the other hand, would mean that the previous judgments in her favour were upheld and that her lawyers could resume the process of extracting suitable compensation – although Associated Newspapers might seek to appeal again, this time to the Supreme Court.
The current appeal is restricted in scope: it is purely against the decision last February by the High Court judge, Lord Justice Warby, to deliver ‘summary judgment’ – in other words, to declare his findings without holding a trial. Warby said at the time that, having heard at length from barristers for both sides, there was nothing a trial could do to shed further light on the key issues.
Associated must now prove to the three appeal court judges that Warby was wrong on that point and that he underestimated the importance and legal value of what might emerge from the examination of relevant witnesses in court.
Surprises are always possible, but on the basis of what we know so far, that will be a tall order. Associated’s case at the High Court, in brief, was that the Duchess never really intended the letter to be kept private, that she was complicit in briefing friends to talk about the contents of the letter to People magazine (so waiving her rights over it) and that the Mail on Sunday acted in the public interest to correct false impressions given in the People article.
Lord Justice Warby rejected all of these arguments in a long, detailed and crushing judgment, insisting that Associated was so far from proving its case that nothing could be gained by having a trial.
Will the three judges in the Court of Appeal see the matter differently? It’s a mug’s game second-guessing the courts but it may be relevant that the judge who gave Associated permission to appeal said he had done so, not because its case was strong, but because there was ‘significant public interest’ (by which he meant that it was an important matter rather than that it aroused a lot of curiosity).
Associated Newspapers, publisher of the Mail, Mail on Sunday and MailOnline, is very much at home in the courts – it fights legal claims against it so readily and doggedly that it is surely a matter of policy to do so – but it has rarely come legally unstuck as spectacularly as it has in this case, thus far at least.
The decision to publish in the first place was very surprising. Every journalism student in the UK learns that personal letters are strongly protected by copyright law, yet the editor of the Mail on Sunday, advised by a battery of in-house lawyers, still published. It may be that he assumed the Duchess would not sue, in which case he miscalculated.
Similarly, pretty well all recent English case law on privacy suggested that it would take powerful evidence to convince the courts that such a violation of the Duchess’s privacy was justified. And when it came to it, Lord Justice Warby decided that Associated’s evidence was the opposite of powerful.
The outcome was all the worse for Associated because it was ordered to pay most of the Duchess’s legal bills in the case, the first instalment of which alone has cost the newspaper company £450,000. But money seems to be of little concern in an organisation owned (through Jersey and the Bahamas) by the billionaire Lord Rothermere. As for the reputation of the Mail on Sunday, it has presented itself as a martyr to arbitrary justice.
To repeat, if Associated wins its appeal, in whole or in part, it would certainly not be the end of the matter. The case – either the copyright element or the privacy element or both, depending on the appeal court findings – would go back to the High Court for trial, with both sides arguing from scratch, probably before a different judge, who would preside without a jury.
This is something Associated always wanted, though not necessarily for lofty motives: getting the Duchess, her husband, her friends and her father into the witness box would create a sensation and, win or lose, the Mail papers could bask in the global limelight for weeks.
As things stand, however (and I stress that I am not a lawyer), that outcome seems unlikely, not least because Associated’s case appears even weaker today than it was when Warby issued his summary judgment.
Back then, the company claimed that it could produce one or more witnesses at trial who would testify that palace staff helped the Duchess write the letter, thus undermining her claim to copyright. But just weeks after the judge declared that this was too vague to justify a trial, a legal letter was made public that was written on behalf of Jason Knauf, a former palace communications official widely assumed to be central to the issue.
Knauf had confirmed, the letter stated, that ‘as a matter of copyright law, he was not the author or a joint author of the Letter or Electronic Draft and does not own any copyright in either work’. On this basis he seems more likely to be a trial witness for the Duchess than for the newspaper group.
If the appeal is thrown out it would be a confirmation of the Duchess’s resounding victory last February – but don’t rule out that appeal to the Supreme Court. Associated has a record of taking the legal process to its limits and if it saw any chance that it would be given permission to appeal further it would probably apply.
One advantage of doing so, for the paper, would be delay. Nearly three years have passed since the Mail on Sunday published the Duchess’s letter and some of the issues, to do with her father and her wedding, already seem remote in time. The longer Associated can drag out the process the more it will appear to the public to be a matter of history rather than something justifying current outrage.
