Meghan Markle, the Duchess of Sussex, has been granted summary judgment in her legal battle with Associated Newspapers Limited (ANL), publishers of the Daily Mail and Mail on Sunday. Ms Markle began legal action against ANL in 2019 in response to a publication by the Mail on Sunday of a letter the Duchess sent to her father, Thomas Markle, in 2018. This was shortly after her marriage to Prince Harry. The claim against ANL was for misuse of private information, copyright infringement and breach of the Data Protection Act.
Copyright infringement and breaches of the DPA have been around for years and are well-recognised in privacy law. But what is misuse or private information?
Misuse of information is a relatively new tort, first “introduced” in the 2004 House of Lords case Naomi Campbell v Mirror Group Newspapers (MGN) as a means of giving claimants a remedy for the breach of their Article 8 rights. According to the ruling in the Campbell case misuse of private information claims are concerned with “the protection of human autonomy and dignity—the right to control the dissemination of information about one’s private life and the right to the esteem and respect of other people”.
What does a misuse claimant need to show?
While misuse of private information claims will vary from case to case, the courts will invariably apply a two-stage process.
Stage one – reasonable expectation of privacy
A claimant must first establish that s/he has a reasonable expectation of privacy in the information in question. The Supreme Court has held that “the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case”.
“They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher,” the Court said.
Article 8 will only be engaged if the interference in question is not trivial.
Stage two – the balancing exercise
If the claimant establishes a reasonable expectation of privacy, the court then conducts a balancing exercise between the competing rights engaged, those of the publisher to impart, and the public to receive the information (Article 10), and the privacy rights of the claimant (Article 8).
The degree to which the intended disclosure is in the public interest is a key factor in balancing competing rights under articles 8 and 10 of the Convention. The publication of private information is easier to justify when it relates to matters of significant public interest.
Applying the two-stage test Warby J found that Ms Markle “had a reasonable expectation that the contents of the letter would remain private. The Mail articles interfered with that reasonable expectation.”
He said that “the only tenable justification for any such interference was to correct some inaccuracies about the letter”, contained in an article in People magazine which featured an interview with five friends of Ms Markle.
But Mr Justice Warby added: “The inescapable conclusion is that, save to the very limited extent I have identified, the disclosures made were not a necessary or proportionate means of serving that purpose.
“For the most part they did not serve that purpose at all. Taken as a whole the disclosures were manifestly excessive and hence unlawful.”
Mr Justice Warby went on to grant the Duchess summary judgment (thus avoiding a costly and bruising trial) in her claim for the misuse of private information and most of the claim for copyright infringements.
Meghan Markle concluded that this represents a victory for everyone “We now know, and hope it creates legal precedent, that you cannot take somebody’s privacy and exploit it in a privacy case, as the defendant has blatantly done over the past two years.”
The case is due to return to court on March 2 to decide the “next steps” for the case, including assessment of damages, any outstanding issues that must be decided at trial, and costs.
If you believe your data has been misused, whether by being published online or to a more limited extent, please get in touch with one of our solicitors at DRM Legal and we can advise you if you have a claim for misuse of private information.