The Duchess of Sussex called for a reshaping of the tabloid newspaper industry and said she had been patient in the face of “deception, intimidation, and calculated attacks” as the Mail on Sunday lost its appeal in its three-year privacy battle with her over a letter to her estranged father.
Meghan sued Associated Newspapers Limited (ANL), also the publisher of Mail Online, over five articles reproducing parts of the “personal and private” letter to Thomas Markle, 77, in August 2018.
The duchess, 40, won her case earlier this year when a high court judge gave summary judgment in her favour without need for a trial. But ANL appealed on the grounds the case should go to trial on Meghan’s claims including breach of privacy and copyright.
Dismissing the appeal, the court of appeal judges Sir Geoffrey Vos, Dame Victoria Sharp and Lord Justice Bean upheld Lord Justice Warby’s decision to grant summary judgment, and ruled that the duchess had a “reasonable expectation of privacy” in the contents of the letter.
“Those contents were personal, private and not matters of legitimate public interest,” Vos said in a summary of the ruling read aloud.
In a statement, the duchess said: “This is a victory not just for me, but for anyone who has ever felt scared to stand up for what’s right. While this win is precedent-setting, what matters most is that we are now collectively brave enough to reshape a tabloid industry that conditions people to be cruel, and profits from the lies and pain that they create.
“From day one, I have treated this lawsuit as an important measure of right versus wrong. The defendant has treated it as a game with no rules. The longer they dragged it out, the more they could twist facts and manipulate the public (even during the appeal itself), making a straightforward case extraordinarily convoluted in order to generate more headlines and sell more newspapers– – a model that rewards chaos above truth.
“In the nearly three years since this began, I have been patient in the face of deception, intimidation, and calculated attacks. Today, the courts ruled in my favour– – again– – cementing that the Mail on Sunday, owned by Lord Jonathan Rothermere, has broken the law. The courts have held the defendant to account, and my hope is that we all begin to do the same. Because as far removed as it may seem from your personal life, it’s not.
“Tomorrow it could be you. These harmful practices don’t happen once in a blue moon– – they are a daily fail that divide us, and we all deserve better.”
ANL said it was is considering an appeal to the supreme court. A statement said the publisher was “very disappointed” by the decision, and its “strong view” was “judgment should be given only on the basis of evidence treated at trial” in “a heavily contested case, before even disclosure of documents”.
Before the appeal Meghan’s costs were estimated at £1.5m, but that figure will have increased with the appeal.
Rejecting ANL’s argument that publication of the extracts was justified to correct a negative portrayal of Thomas Markle in US People magazine, the judges said it was “not a justified or proportionate means of correcting” any inaccuracies. They agreed with Warby that just one paragraph of the letter could have been “justifiably deployed” to rebut People magazine’s allegations against Markle.
During the appeal hearing in November, ANL said Meghan had written the letter with the knowledge it could be leaked. In her written evidence, Meghan denied she thought it likely that her father would leak the letter, but “merely recognised that this was a possibility”.
ANL argued it had new evidence in a witness statement, texts and emails from the Sussexes’ former communications chief Jason Knauf that showed she had sent him a draft of the letter, writing: “Obviously everything I have drafted is with the understanding that it could be leaked so I have been meticulous in my word choice.”
The court of appeal also heard Knauf provided information to the authors of the Sussexes’ biography, Finding Freedom, and that Meghan had provided him with a list of “background reminders” on her life story before his two-hour meeting with them.
Knauf’s witness statement prompted the duchess to apologise for unintentionally misleading the court over whether he had given information to the book’s authors. She had not remembered the emails between her and Knauf, she said in a statement.
The court of appeal noted the duchess’s apology, and said that “this was, at best, an unfortunate lapse of memory on her part, but did not bear on the issues”. It said it found the “new evidence” provided by ANL “of little assistance”.
Upholding Warby’s “careful” decision on summary judgment, the appeal judges said it was “hard to see what evidence could have been adduced at trial that would have altered the situation”.
Vos said: “The judge had correctly decided that, whilst it might have been proportionate to publish a very small part of the letter for that purpose, it was not necessary to publish half the contents of the letter as Associated Newspapers had done.”
Meghan’s barristers had argued that the letter was “deeply personal” and “self-evidently was intended to be kept private”.
Texts released by the court in November showed Meghan expressing her frustration with the royal family, describing them as “constantly berating” Harry over the negative publicity surrounding her father before their wedding. This was a catalyst for her writing the letter, to protect Harry from his family, she wrote to Knauf.
Emails also showed her wanting to counter stories about an alleged row over which tiara she could wear at her wedding, and denying reports of any row saying the Queen chose the tiara for her.
ANL argued that Markle was entitled to publish extracts from the letter to counter the negative image of him portrayed by five of Meghan’s friends in an article in US People magazine.
The case was discussed in the House of Commons on Thursday after the SNP MP Martin Docherty-Hughes asked Jacob Rees-Mogg, the leader of the house, if he would congratulate the duchess.
Rees-Mogg said: “It is concerning that the rich and powerful can use the court to protect their private life when others can’t. I would be deeply concerned about anything that undermines freedom of speech.”
