By Brian Cathcart
ALTHOUGH it is untrue, much of the British public now believes that despite losing its long and bitter court battle against Meghan, the Duchess of Sussex, the Mail newspaper group has only been required to pay £1 in damages.
How this ‘categorically false’ notion (the words of the Duchess’s spokesperson) gained currency is no secret. It was the result of journalistic misrepresentation or laziness on a grand scale, indeed it offers a case study in collective bad workmanship in the UK news industry.
The real facts were never complicated or hard to establish. The order of the Court of Appeal dated 16 December 2021, which brought the case to an end, states at paragraph 5:
‘The Appellant [the Mail group] shall by 7 January 2022 pay the Respondent [the Duchess] the confidential sum agreed between the parties as set out in the Confidential Annex A hereto following judgment in respect of the claim for copyright infringement.’
In other words, the newspaper company agreed to pay her an undisclosed sum in compensation for breaching her copyright. The next paragraph, paragraph 6, says this:
‘The Appellant shall by 7 January 2022 pay the Respondent the sum of £1 by way of nominal damages for misuse of private information [otherwise known as breach of privacy].’
From this it should have been obvious that the Duchess received from the Mail on Sunday what are routinely referred to in legal journalism as ‘undisclosed damages’ – and those damages have since been described by her spokesperson as ‘substantial’.
But that is not how it was reported.
The Mail’s headline showed the way: ‘Mail On Sunday will pay Meghan Markle just £1 in damages for privacy breach after losing court battle over letter to her father’. The Times followed: ‘Mail to pay Meghan just £1 for privacy invasion win’. And the Guardian: ‘Meghan to receive just £1 from Mail on Sunday for privacy intrusion’. And the BBC: ‘Meghan to receive £1 in damages after privacy case’. And Sky News: ‘Meghan gets £1 in damages over Mail on Sunday privacy case’.
That’s just a sample. There were exceptions – news organisations that did not jump at an angle that was eye-catching, clickbait and misleading – but they were few. And the ‘just £1’ message travelled around the world.
‘But it’s true,’ the perpetrators would undoubtedly whine. ‘Just look at paragraph 6. She really did get just £1 for the privacy breach.’
It may be literally true, but to lead your news report with that fact is to mislead your readers, because the actual outcome of the case was completely different. What these journalists have done is like reporting a football match in which City beat United 5-1 with the headline ‘United score against City’.
And it is not good enough that they mentioned the confidential payment for copyright lower down in their reports. They know very well that the angle leading their news report is the one that sticks with most of their readers or viewers.
If you doubt that, imagine the likely impact of a headline that was actually faithful to the reality: ‘Mail on Sunday pays Meghan substantial damages’.
Those who chose the ’just £1’ angle not only misled their readers and viewers and they not only went with the herd in a way journalists are not supposed to do; they also played along with the Mail’s systematic misrepresentation of a case it was always doomed to lose and which in the end it lost very badly indeed.
Let’s spell that out. The Mail, having recklessly published large parts of a personal letter in obvious breach of the law, and having duly lost in court not once but twice, has since then cynically played every trick it knows to give the impression its defeat was a victory.
And by promoting the ‘just £1’ line the Times, the Guardian, the BBC and the rest played along with that. They assisted the lawbreaker in misleading the public. They knew perfectly well how to report a legal settlement involving undisclosed damages, but they did something sleazy instead.
If they have any defence I don’t see it. Not least because the idea that the Duchess would accept nominal damages for the breach of her privacy wasn’t even news.
As long ago as last March her lawyers served notice publicly in court that in the event she was vindicated she would seek only nominal damages with respect to privacy. Here’s a Guardian report from that date that refers to it.
So what is the real story of the Duchess’s damages?
As we have seen, she sued both for breach of privacy and breach of copyright. Although both offer remedies in the form of damages, with breach of copyright there is another option: ‘account of profits’, where the amount of compensation is linked to the financial advantage gained by the party that has breached the law.
The Duchess chose to pursue her compensation through account of profits, which meant that copyright had to be the route. That is why her lawyers told the court last March that she would be happy with only nominal damages with respect to her privacy claim.
In principle, establishing how much money the newspaper group made by illegally publishing the Duchess’s letter should have involved a trial, in which the finances of Associated Newspapers Ltd would have been placed under close public scrutiny.
Plainly anxious to avoid that, the newspaper group has offered the Duchess a sum of money sufficiently large to satisfy her and her lawyers that there was nothing to be gained by proceeding further. This is is ‘the confidential sum agreed between the two parties’ referred to in paragraph 5 of the December court order.
It is a waste of time speculating about how much that sum was. There aren’t even any relevant precedents to go by. The Duchess’s spokesperson has said it was ‘substantial’ and we can assume that it was, because having won in both the High Court and the Court of Appeal she had no reason to accept any less than the most she thought a judge might award.
In cases like these before the English courts, the damages are usually considerably lower than the costs, and that matter remains to be tidied up. Having lost and lost badly, the newspaper group is liable for most of the Duchess’s costs, which are very high. Already Associated Newspapers has been obliged to pay £750,000 on account, and there is more to come.
Even before the appeal prolonged the process, the Duchess’s total costs were estimated at around £1.5 million. By now they must be in excess of £2 million. The Mail group (which is owned by a billionaire, Lord Rothermere) will probably have to pay around three-quarters of that. And remember that the Mail group also has to pay all its own legal bills – perhaps another £1 million.
The price of breaching people’s basic rights can be extremely high, and so it should be. When journalists and news organisations suggest, in defiance of the facts, that it can be as little as £1, they are only serving the interests of wrongdoers and lawbreakers.