Why has Meghan, Duchess of Sussex, decided to sue the Mail on Sunday?
The Mail on Sunday (MoS) published numerous embarrassing stories about Meghan in the run-up to her wedding to Prince Harry. Many of them required the cooperation of Meghan’s estranged father, Thomas Markle, who helped the newspaper produce numerous articles including staged paparazzi photos.
In February the Guardian broke the news that Meghan was considering legal action against the MoS after it published a handwritten note she had sent her father, in which she begged him to stop talking to the media. He had passed the note on to the newspaper’s US west coast correspondent, Caroline Graham. Substantial extracts then appeared on the front page as a “world exclusive”.
Why is Meghan using copyright law to sue the newspaper?
Meghan is not suing the MoS for publishing defamatory or inaccurate information. No one has claimed the letter is fake – although Prince Harry does claim the newspaper selectively edited its content, a suggestion the MoS denies.
Instead, Meghan is suing for breach of copyright, infringement of her privacy, and breaches of the Data Protection Act – an act beefed up last year as part of the GDPR changes.
The copyright aspect of the case is based on the principle that the author of a letter retains ownership of its content, regardless of who possesses the piece of paper.
“A letter is a copyright work as it is a literary work,” Alex Newman, national head of intellectual property law at Irwin Mitchell solicitors, said this year. “As soon as you create a copyright work you will own the copyright until it expires automatically. This gives you the right to prevent anyone else copying, or issuing to the public, the whole or a substantial part of your copyrighted work.”
Judges have been increasingly willing to find against the media in privacy cases. Meghan’s lawyers are likely to argue that there was no legitimate public interest in publishing the letter. If the MoS loses the case it could have wider implications for all journalists who want to report on leaked private documents.
What is unusual about this case?
Meghan has broken with protocol by employing the libel lawyers Schillings, a company which delights in its reputation as an attack dog that works aggressively on behalf of its clients against journalists.
The couple have been willing to break with royal convention, hiring external PRs and refusing to agree to tabloids sharing pictures of their child. They say they will use private funds to bring the proceedings, which were announced at the end of the couple’s overseas trip to South Africa, overshadowing their other announcements.
What are the potential ramifications of this decision?
The MoS has the same owner as its sister titles, the Daily Mail, and MailOnline, but has a separate editorial team. In common with all print newspapers its circulation is falling but its stories reach a huge audience. It is clear from Harry’s statement that the real target is less a print newspaper than the dozens of websites which rewrite its stories and amplify them around the world.
Starting legal proceedings against the MoS regarding a single article is also a warning to its MailOnline, which publishes dozens of stories about Meghan every month.
What does this say about the couple’s approach to the media?
Meghan’s announcement about the legal action was accompanied by a lengthy, passionate, statement from Harry expressing his anger at her treatment by the media.
When his mother, Princess Diana, was the subject of intense media interest during the 1980s and 1990s there were limited ways for the royals to react against the tabloid newspapers, which sold millions of copies a day and set the national agenda. The Daily Mail pledged in the aftermath of her death to never again use paparazzi pictures.
Now, social media and a broader collapse of trust in newspapers means Meghan and Harry can use the same tactics used by politicians to rally their supporters against critical media outlets. However, while readers publicly say they can be disgusted with stories about the couple, articles about them often dominate the most-read sections of news websites – giving tabloids a strong incentive to keep writing about Meghan.