By Brian Cathcart
WHEN THE COURT of Appeal hands down its judgment in the case of the Duchess of Sussex versus the Mail on Sunday newspaper on Thursday morning (London time), one thing is certain: the Mail and its friends in the UK corporate press will misrepresent it.
Only the judges know what they have decided in this long-running dispute about copyright and privacy, but the pattern of press distortion is too well-established to vary now.
If the Duchess loses, the press will be deliriously triumphant, hailing a victory that proves once and for all that she is a fraud and a manipulator who has been exposed thanks to the dauntless heroism of the Mail on Sunday.
And if the Duchess wins, it will be an outrageous denial of natural justice, another nail in the coffin of press freedom, a further sign of the aloof wrongheadedness of England’s judiciary and (again) ultimate proof of the Duchess’s powers of sorcery.
Neither of these pictures will bear the remotest resemblance to the truth, a truth that the corporate papers have been studious in concealing from their readers.
In brief, even if the three senior judges in the Court of Appeal uphold the arguments of Associated Newspapers, owners of the Mail papers, the Duchess will still hold almost all the cards.
That is because the appeal is not about whether the Mail on Sunday was justified in publishing large extracts from a personal letter she wrote to her father. Instead it turns on the question of whether the judge in the lower court was legally correct when he gave judgment in her favour without holding a trial.
If Associated wins, therefore, it will not be vindicated. It will simply live to fight another day at a trial in the High Court, where the Duchess has already won once and where the weight of evidence will remain strongly in her favour.
But don’t expect that to be the headline. The gulf between what the public is being told about this case and its reality is so wide the two may be described as parallel universes, as was vividly illustrated by the hysterical scandal of the Duchess’s apology.
On the day the appeal hearings began earlier this month the news was dominated by one thing: the Duchess had apologised to the court after being forced to revise her story about a briefing given on her behalf to authors of a book about her and Harry.
The UK papers set the pace and the rest of the media, in broadcast and around the world, meekly followed. Meghan had been caught lying. She had secretly influenced what the book said and then tried to conceal her involvement. She had been humiliated. This could be – probably was – the turning point in the whole case. The Duchess might even find herself charged with perjury.
To anyone following the actual hearing all this might easily have related to an entirely different case, because the apology – and it is true that there was an apology – scarcely figured in the proceedings. In three days of discussions – some 12 hours of argument – I heard only one reference to it, and it was certainly nowhere near the forefront of Associated’s case.
That is for the very good reason that the issue was, at its highest, only marginally relevant to the question that the judges focused on: was Lord Justice Warby legally right to deliver ‘summary judgment’ (i.e. judgment without benefit of a trial) in the High Court last February?
Most of the arguments related to process. Had he gone through the required steps to judgment properly? Had he read the precedents correctly? In balancing the Duchess’s rights against the rights of the Mail on Sunday and of her father, Thomas Markle, did Warby give weight where it was due?
The Duchess’s apology had little to do with these matters, or at least so the debate in court suggested. (And incidentally there is not the remotest chance of a perjury charge.) So why did the Mail and its allies make so much of it? What do they have to gain from creating this parallel universe?
On one level the answer is simple. They hate the Duchess and so the slightest embarrassment for her brings them a joy to be celebrated as luridly and loudly as possible.
On another level they are up to something more subtle: grooming the public to think that the evidence is all on their side. That is not the case.
If, ultimately, the Mail on Sunday is found to have been justified in publishing substantial parts of a personal letter from a daughter to her father, that will represent a revolution in English privacy and copyright law.
The Duchess’s copyright claim is especially strong, but her privacy claim is also in line with how privacy is generally understood in English courts today. It was not for nothing that Warby ruled that the law would still be on her side even if Associated succeeded in proving in court everything it said it could.
Associated argues that the Duchess compromised her own rights, that she always intended the letter to become public. At its simplest that begs the question: why is she suing? But more generally – and allowing for the new evidence – Associated’s case seems to fall short.
The most it can prove, on Warby’s reading, is that she knew there was a possibility, a risk, that it might become public, but there is nothing to show that, for example, she took any active steps to make it public. The fact that a person knows there is a risk that a private document will be made public does not, on the established case law, make it any less private.
In suggesting that the Duchess is bound to lose, the UK corporate papers seem to be setting their readers up to be surprised when, as is ultimately likely, she wins. The public will not understand, and from that point they can more easily be led into thinking that an outrage has occurred and that the Mail on Sunday has acted nobly but has been the victim of injustice.
When you dominate the news media and too few people are ready to challenge you, it is possible, providing you prepare the ground carefully, to win even when you lose.