By Brian Cathcart
THE MAIL and its allies will protest, but the Duchess of Sussex’s victory in the Court of Appeal is a straightforward one, upholding well-established principles in English privacy and copyright law.
A crushing judgment in her favour in the High Court has now been followed by an equally crushing unanimous finding from three of the country’s most senior judges.
‘For the reasons I have given,’ wrote the presiding judge, Sir Geoffrey Vos, ‘I would admit the new evidence filed by both parties and dismiss Associated Newspapers’ appeal on all the grounds for which permission was granted.’ Associated Newspapers is the owner of the Mail on Sunday.
In other words, the newspaper broke two laws in early 2019 when it published large parts of a personal letter the Duchess wrote to her father, and for all the legal fuss it has made since then the newspaper has offered no meaningful legal defence.
The famous ‘new evidence’ submitted by Associated, and the Duchess’s equally famous apology for revising her position, made no difference to the outcome.
Associated, which is backed by the wealth of its billionaire proprietor Lord Rothermere, tends to exhaust every possibility in court cases and so will probably now seek leave to appeal to the Supreme Court, but after such a resounding dismissal its chances must be slender.
The matter now returns to the High Court, where Lord Justice Warby has yet to conclude the process of determining how the Duchess is to be compensated for the harm done to her. She is not seeking damages but an ‘account of profits’: in other words she wants to be compensated on the basis of how much money the Mail on Sunday made from its law-breaking.
Another consequence of today’s judgment is that the Mail on Sunday should now have to publish prominently on its front page and on page three statements acknowledging that it infringed the Duchess’s copyright. This is a rare if not unprecedented measure in the UK media, where corrections, even to front-page stories, are invariably published without prominence on inside pages.
Also to be resolved is the matter of costs. Associated has already made an interim payment of £450,000 to the Duchess to reimburse her costs in bringing the action. The final sum, now including the costs of fighting the appeal, is likely to be considerably higher.
The findings of the Court of Appeal were, as Sir Geoffrey Vos made clear, on narrow grounds, because the appeal itself was a narrow one. Associated was challenging the verdict of the lower court, not generally on its merits, but on the grounds that judgment should not have been given without a trial.
These harmful practices don’t happen once in a blue moon – they are a daily fail that divide us, and we all deserve better.Megham, the Duchess of Sussex
The result is likely to surprise those who followed the case through the UK news media, which generally adopted the Daily Mail’s line that it was about the conduct of the Duchess. Very little court time was devoted to Associated’s argument that the Duchess intended the letter to be public because, as both courts have now concluded, Associated could not come near to proving that.
Instead the appeal turned on the rights of the Duchess’s father, Thomas Markle. Associated claimed that he had been so severely wronged by claims in People magazine attributed to the Duchess’s friends that he had the right to publish the letter in reply.
The Court of Appeal rejected this, saying that the Mail on Sunday’s decision to publish almost half of the letter was disproportionate and unjustified. There might have been a case, wrote Vos, for publishing a very small part of the letter to set the record straight, but not for reproducing almost half of it.
This is nothing more than would generally have been expected in terms of current English law. Journalists are taught in the earliest part of their training that it is extremely hard to justify publishing the contents of private correspondence, both on privacy and copyright grounds.
That the Mail on Sunday published at all was probably the result of a calculation that the Duchess would not sue. That obviously proved to be a miscalculation, though it may be a measure of how seriously Associated takes these things that the editor responsible for the decision, Ted Verity, was promoted last month, becoming editor of all the Mail papers.