The Privacy Claim Of The Century – Her Royal Highness Meghan Markle Vs. The Mail On Sunday

Meghan Markle, the Duchess of Sussex, has filed a High Court claim against the Mail on Sunday and its proprietors, Associated Newspapers, over the alleged:

• Misuse of her private information;
• Infringement of copyright; and
• Breach of the Data Protection Act 2018.

Meghan Markle and the Mail on Sunday dispute

In August 2018, the British tabloid newspaper, the Daily Mail, published extracts of a letter handwritten by Meghan Markle intended for her father, Thomas Markle. The letter was of an extremely private and personal nature, depicting Meghan’s sadness at her estrangement from her father.

Prince Harry, in defence of his wife stated that the alleged unlawful publication of the letter was done in an “intentionally destructive manner” to “manipulate readers”. The Duke of Sussex claims that readers were misled by the Daily Mail…

“strategically omitting select paragraphs, specific sentences and even singular words to mask the lies they had perpetuated for a year”.

The Mail on Sunday have issued a comment stating that they…

“categorically deny that the Duchess’s letter was edited in any way that changed its meaning”.

The relevant data protection law

The European Convention of Human Rights (ECHR) is relevant in respect of the publication of an individual’s private information.

Article 8 provides a right to respect for private and family life, home and correspondence. This seems to apply to the Duchess’ case as the letter was clearly a private one that was intended for her father. This article is contrasted with Article 10 which provides the right to freedom and expression of information. It is likely that the Mail on Sunday and its parent company, Associated Newspapers, will heavily base any defence to the breach of privacy on the provision in Article 10. This provision allows the press a degree of free reign to what they can publish, subject to it being within the public interest.

Due to the recent implementation of the General Data Protection Regulation (GDPR) in the UK, the Data Protection Act 2018 rightly provides stringent protections on the personal information of individuals. Personal information is protected and cannot be processed or published without permission. Therefore, the Mail’s publication of the Duchess’ letter could be ruled as unlawful based on this alone.

Public interest or just interesting to the public?

It is important to make a distinction between what is interesting to the public and what is actually in the public interest. The fact that HRH Meghan Markle’s relationship with her father is interesting to the public does not automatically mean that the publication of such a private letter is in the public interest.

It is unsurprising given that the Royal Family are such prominent public figures that in 2006, Prince Charles found himself in a similar predicament. Prince Charles sued the Associated Newspapers for a breach of privacy after they published extracts from his private diary. The Prince’s lawyers argued that it was a clear breach of his privacy as the information in his diary was confidential and therefore protected under Article 8 of ECHR.

The Court agreed with Prince Charles and it was ruled that the publication of his diary extracts were unlawful. The Hon Justice Blackbourne stated:

“The right to be able to commit his private thoughts to writing and keep them private, the more so as he is inescapably a public figure who is subject to constant and intense media interest… The Prince of Wales is as much entitled to enjoy confidentiality for his private thoughts as an aspect of his own human autonomy and dignity as is any other.”

With the above in mind, although there is a distinction between a diary which is entirely private and a private letter, which has an intended recipient, some significance will most likely be attached, given that the intended recipient was her father only, not the whole world.

If the Duchess succeeds in this Data Protection Act 2018 case, not only the press, but all individuals who publish on public forums, e.g. social media, should strongly consider the legality and nature of personal information that they are sharing about others.