Associated Newspapers Ltd v HRH The Duchess of Sussex [2021] EWCA Civ 1810

The Court of Appeal upheld summary judgment for the Duchess of Sussex against Associated Newspapers for misuse of private information and copyright infringement, after the Mail published extensive extracts from her handwritten letter to her father. Publication was disproportionate to any right of reply.

Facts

On 27 August 2018 the Duchess of Sussex sent a five-page handwritten letter (the Letter) by courier to her father, Mr Thomas Markle. The Letter reprimanded him for his dealings with the tabloid press and asked him to stop. Mr Markle had not attended the couple’s wedding in May 2018, having been admitted to hospital, and the run-up to the wedding had been fractious, with Mr Markle engaging with the media, including staging photographs with paparazzi, for which he apologised by text.

On 6 February 2019 People magazine in the USA published an article (the People Article) based on anonymous interviews with five friends of the Duchess. It described the Letter as a heartbroken plea for reconciliation and referred to Mr Markle’s reply, which had suggested a photo opportunity. The parties and the judge agreed that the People Article inaccurately described the Letter and the Duchess’s purpose in writing it: the Letter was not an olive branch but a reprimand.

On 10 February 2019 the Mail on Sunday and MailOnline published a series of articles (the Articles) reproducing about half of the Letter, with 88 separate quotations, under headlines including “World Exclusive” and stating that “the full content of a sensational letter” could be revealed for the first time. Mr Markle’s evidence was that he chose the extracts solely to defend himself against the People Article; the editor, Mr Verity, considered Mr Markle entitled to correct the record. No contact was made with the Duchess before publication.

Warby J granted summary judgment for the Duchess on misuse of private information and, following a further judgment of 12 May 2021 (after it became clear Mr Jason Knauf was not a co-author), final summary judgment on copyright. Associated Newspapers appealed. Both parties sought to adduce fresh evidence, notably a statement from Mr Knauf exhibiting texts, and a responsive statement from the Duchess in which she accepted that a pleaded statement about the Kensington Palace Communications Team’s involvement with the authors of the book Finding Freedom had been inaccurate and apologised for her lapse of memory.

Issues

The Court identified seven issues:

1. Whether the fresh evidence from both parties should be admitted.
2. Whether the judge failed to recognise the significance of the People Article’s attack on Mr Markle.
3. Whether the judge’s analysis of the factors said to undermine the Duchess’s reasonable expectation of privacy was flawed (stage one).
4. Whether the judge misstated the test, treating the defendant as having to justify an interference with privacy rather than balancing the competing Articles 8 and 10 ECHR rights.
5. Whether the judge wrongly applied a strict test of necessity and proportionality to Mr Markle’s right of reply.
6. Whether the judge failed properly to evaluate the Article 10/public interest defence to the copyright claim.
7. Whether the judge wrongly relied on his privacy analysis to reject the fair dealing (reporting current events) defence.

Arguments

Associated Newspapers

The publisher argued that the Letter was written by a high-profile figure who thought it likely to reach the public domain; that its contents had been briefed to the authors of the book and to People magazine; that Mr Markle had been traduced before some 40 million US readers by allegations that he cold-shouldered his daughter, lied about being shut out and cynically ignored her pleas in a loving letter; and that he could not effectively respond without disclosing the Letter’s contents. It contended that the judge (i) treated the disclosures to People magazine and the book as relevant only to public domain rather than to the Duchess’s conduct and ambivalence, (ii) gave inadequate weight to Article 10, (iii) wrongly required necessity, as if dealing with state interference under Articles 8(2)/10(2), rather than balancing rights per Baroness Hale in Campbell at [137], [140]-[141] and Re S, and (iv) stated the right of reply too narrowly, drawing an analogy with qualified privilege in defamation (Adam v Ward). On copyright, Mr Speck QC argued the judge misapplied Ashdown, failed to weigh the low level of originality in the Letter, ignored Mr Markle’s own Article 10 rights, and took too narrow a view of “reporting current events”, which Pro Sieben requires to be interpreted liberally; fairness could not be evaluated summarily.

The Duchess

The Duchess supported the judge’s reasoning and, by Respondent’s Notice, contended the defence had no reasonable prospect of success in any event. She submitted that a trial would be a further intrusive process where it could already be seen there was no justification for publishing large tracts of a private letter, and that the Letter for the most part merely reinforced the points made against Mr Markle in the People Article.

Judgment

Sir Geoffrey Vos MR gave the leading judgment, with which Dame Victoria Sharp P and Bean LJ simply agreed. The appeal was dismissed on all grounds for which permission had been given.

Fresh evidence

The Master of the Rolls doubted that the Ladd v Marshall criteria were met, but admitted the material “as a matter of pure pragmatism” (at [70]), the parties having tacitly agreed the court should have regard to it. He held it was of no important relevance: it related mainly to the drafting of the Letter and contacts with the authors, and the Book was published long after the Articles. The Duchess’s acknowledged pleading inaccuracy was described as “at best, an unfortunate lapse of memory on her part” (at [71]) which did not bear on the grounds of appeal.

The attack on Mr Markle

Although the judge had not quoted extensively from the People Article, he had not misunderstood its import; his stage two analysis focused on its misleading and attacking character and the damage to Mr Markle’s reputation. Crucially, the Letter was not an answer to the allegations: “But the Letter was not an answer to that allegation. It was simply more of the same” (at [75]). The contents of the Articles were more important than the details of the People Article, since they were focused on revealing the Letter rather than on Mr Markle’s defence.

Reasonable expectation of privacy

The Court agreed with the judge’s “impeccable” analysis of the Murray factors. Even if further evidence emerged of dealings with People magazine or the authors, that could not abrogate the reasonable expectation of privacy in the detailed contents of the Letter, which had plainly not been placed in the public domain before the Articles. The Court held it “was and is plain that she did not do so before the Articles, even if it was disclosed to the Authors” (at [84]). The suggestion of ambivalence (by analogy with AAA v Associated Newspapers) failed for want of evidence; indeed the new evidence showed the Duchess did not want the contents published, even if she contemplated that they might become public.

The test and the right of reply

The Court rejected the submission that the judge had misapplied the balancing test. He had correctly stated the law at [31] of his judgment and understood he was bound by Campbell and Re S. Vos MR held:

I accept that the judge fell in to the shorthand use of the question whether the publication was necessary and proportionate in pursuit of a legitimate aim. In my judgment, he used the word necessary as meaning “justified” just as Baroness Hale did at [152] in Campbell itself. (at [94])

Further, the judge had done exactly what the parties asked, answering the binary stage one question and then conducting the stage two balance, taking account of the alleged weakening of the Duchess’s rights and the realities of the allegations against Mr Markle. His main conclusion was that publication of extensive verbatim extracts “was disproportionate to the limited right to reply that Mr Markle undoubtedly had” (at [95]). The Letter was a further rendition of the Duchess’s point of view and therefore not naturally a reasonable way of rebutting allegations against her father; the Articles deployed it not as a defence but as a “splash”, with Mr Markle’s response to the key passage amounting to no more than bafflement at the phrase “rabbit hole”. Vos MR concluded that the judge “was right to decide that it was inappropriate and disproportionate to deploy the detailed content of the Letter in answer to the People Article” (at [95]).

Copyright: Article 10 and fair dealing

The Court accepted that the copyright/free speech balance is not identical to the Article 8/10 balance and that the Letter contained unprotected facts. Nevertheless the judge had understood that the degree of originality could affect the availability of defences, and no triable issue had been identified which would look different after trial. The criticisms of the judge’s reliance on Ashdown were overstated: the dicta of Lord Phillips CJ at [39] and [58] remained relevant despite the different factual context. Although the judge did not expressly mention Mr Markle’s own Article 10 rights, that was the context of the exercise he undertook.

On fair dealing, the Court accepted that Pro Sieben requires “reporting current events” to be construed liberally, and that the judge might for completeness have mentioned it, but this did not affect his reasoning: the defendant knew the work was unpublished, copied a large and important proportion of its original literary content, and did so disproportionately to any legitimate reporting purpose. Decisively, “the use made of the Letter was unfair, because it was not about reporting current events, but reporting the actual contents of the Letter to make the splash of publication already referred to” (at [102]).

Overall

Vos MR emphasised the confined nature of the appeal (at [105]) and concluded (at [106]):

Essentially, whilst it might have been proportionate to disclose and publish a very small part of the Letter to rebut inaccuracies in the People Article, it was not necessary to deploy half the contents of the Letter as Associated Newspapers did.

Implications

The decision is chiefly an application of established principles rather than a statement of new law. It confirms that the two-stage analysis in misuse of private information cases — a binary reasonable expectation of privacy question assessed by reference to the Murray factors, followed by an intense focus on the comparative importance of the competing Article 8 and 10 rights — may in a suitable case be determined summarily where the central documents speak for themselves and no realistic further evidence would alter the outcome. Here the court had the full texts of the People Article, the Letter and the Articles.

Practically, the case shows that a “right of reply” or “setting the record straight” justification is not open-ended: the reply must be proportionate to the inaccuracy corrected, and the wholesale reproduction of private correspondence will be difficult to justify where the material published does not in substance serve the corrective purpose. The Court also noted the significance of the publisher’s failure to approach the Duchess before publication. The judgment does not decide that private correspondence can never be deployed in reply to a media attack — the Court accepted that publishing a very small part of the Letter might have been proportionate.

On copyright, the decision reinforces that public interest and freedom of expression will rarely override copyright where there is no fair dealing defence, and that reproducing the actual contents of an unpublished private work in order to make a journalistic revelation is unlikely to constitute fair dealing for the purpose of reporting current events, even on the liberal approach in Pro Sieben.

Procedurally, the case is a reminder to appellants challenging summary judgment that the first task is to identify the factual issues requiring oral and documentary evidence to be fairly resolved. Vos MR observed at [66] that “it rapidly appeared in oral argument that what was lacking was a clear focus on the factual and legal errors that the judge was alleged to have made”. The Court’s treatment of the fresh evidence was expressly pragmatic and fact-specific, and should not be read as relaxing the Ladd v Marshall criteria. The decision matters to media publishers, privacy and IP practitioners, and to individuals whose private correspondence is disclosed by a recipient.

Verdict: The Court of Appeal (Sir Geoffrey Vos MR, with Dame Victoria Sharp P and Bean LJ agreeing) admitted the new evidence filed by both parties and dismissed Associated Newspapers’ appeal on all grounds for which permission had been granted, upholding Warby J’s summary judgment in favour of the Duchess of Sussex on both the misuse of private information claim and the copyright claim.

Source: Associated Newspapers Ltd v HRH The Duchess of Sussex [2021] EWCA Civ 1810