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  • February 14, 2021  No comments News

    The Duchess claimed victory on both privacy and copyright claims as experts say costs could reach £5m.

    The Duchess of Sussex has claimed a victory over “moral exploitation” after winning her High Court privacy case against the Mail on Sunday.

    As a judge on Thursday ruled that the publication of extracts of a private letter she sent to her father was “manifestly excessive” and unlawful, she declared: “We have all won.”

    The Duchess hailed a “comprehensive” victory on both privacy and copyright, saying: “We all lose when misinformation sells more than truth, when moral exploitation sells more than decency, and when companies create their business model to profit from people’s pain.”

    The Duchess sued Associated Newspapers for breach of privacy and copyright relating to the publication of five articles – two on MailOnline and three in the Mail on Sunday – in February 2019.

    The strategy, deemed risky by many, was vindicated as she successfully applied for a summary judgment, a legal step that will now see the case resolved in her favour without trial.

    The move will avoid the prospect of having to face her father, Thomas Markle, in a high stakes courtroom clash that could have damaged both her brand and reputation.

    However, media experts described it as “a bad day for press freedom,” acknowledging that the case was widely expected to go to trial so the evidence could be tested.

    The ruling also means the testimony of four Buckingham Palace aides who said they could “shed light” on the issues at stake, as well as that of five of Meghan’s friends who spoke about her to People magazine, will not be heard.

    One media law expert, who declined to be named, said the costs of the case were likely to be in the region of £5m.

    The lawyer said damages for the breach of privacy could be as high as £300,000 but that the award for the infringement of copyright could far exceed that because the Duchess is entitled to seek “an account of profits” – that is any profit made by Associated Newspapers as a result of articles using her letter to her father.

    A hearing would have to assess what profits were made by the publisher’s as a result but could potentially be huge.

    In the year ending September 2019, covering the period when the letter was published in February, Associated Newspapers made a pre-tax profit of £59 million and after tax of £47 million. A court would have to decide the extent of the profits the newspaper and website made from publishing its articles on the letter.

    Mr Justice Warby, who heard the summary judgment application over two days at the High Court, said the Duchess had a “reasonable expectation” that the contents of her five-page letter would remain private.

    “The majority of what was published was about the claimant’s own behaviour, her feelings of anguish about her father’s behaviour, as she saw it, and the resulting rift between them,” he said. “These are inherently private and personal matters.”

    The judge said the “only tenable justification” for publication would have been to correct some inaccuracies about the letter contained in an article in People magazine.

    The article, headlined The Truth About Meghan, was based on anonymous interviews with five of her friends and provided the first public reference to the letter.

    Mr Justice Warby went on: “The inescapable conclusion is that… 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.”

    He added: “Taken as a whole, the disclosures were manifestly excessive and hence, unlawful. There is no prospect that a different judgment would be reached after a trial.”

    The judge also found that the newspaper articles infringed the Duchess’s copyright as they “copied a large and important proportion of the work’s original literary content”.

    But he acknowledged there was a question over whether she was the “sole author” amid claims the Kensington Palace communications team helped write it.

    The judge said a partial trial on the copyright could go ahead but warned Associated Newspapers against the wisdom of doing so.

    “The Court regards the defendant’s factual and legal case as occupying ‘the shadowland between improbability and unreality,” he said.

    Despite the breach of privacy ruling, the judge published previously unseen extracts of the letter in his 53-page judgment, insisting it was necessary to explain his conclusions.

    They included a reference to her desire to protect the privacy of future children and Thomas Markle’s attempt to cover up the fact that he staged paparazzi pictures.

    “We… told you if we tried to protect you from the story running (something we’ve never attempted to do for anyone – ourselves included) that we wouldn’t be able to use that strength to protect our own children one day,” she said. “Even knowing that you said it wasn’t true.”

    The Duchess also berated her father for his “obsession with tabloid media” and said his fascination had turned into paranoia about how he was portrayed.

    “To suffer through this media circus created by you is all the more devastating,” she added, revealing that she “refuses to read any press”.

    In a lengthy statement released after the ruling was handed down, the Duchess accused the Mail on Sunday of “illegal and dehumanizing practices” and said such “tactics” had been used too long without consequence.

    “I share this victory with each of you—because we all deserve justice and truth, and we all deserve better,” she said.

    Mark Stephens, a leading media and human rights lawyer with Howard Kennedy solicitors, said: “This is a bad day for press freedom and a good day for the Duchess. Nobody saw this judgment coming. People expected this to go to trial and test the evidence.”

    Steven Heffer, head of media and privacy law at Collyer Bristow, said: “This is a great victory for the Duchess and clearly the Mail on Sunday would have loved the drama of a big trial of which they are now deprived.” He said the newspaper was always likely to lose the case because this was “always a very private letter”.

    An Associated Newspapers spokesperson said they were “very surprised” by the ruling and disappointed that they had been denied the chance to have the evidence tested in open court.

    It has yet to decide whether to appeal.

    Source: The Telegraph






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