There is a saturation of coverage of the upcoming interview of Oprah and Prince Harry and Meghan, the Duchess of Sussex. The increasingly public spat between the Crown and the couple is turning nasty with an investigation into alleged bullying and abuse of household staff by Meghan. All of that sensational coverage has distracted from a far more substantive and costly matter. Meghan just won a case against Associated Newspapers and the ruling by London High Court Judge Mark Warby should be a concern for anyone who values the freedom of the press.
The case involved the publication of details from a letter that Meghan wrote to her estranged father after she married Prince Harry in 2018. She sued Associated Newspapers, which publishes U.K. tabloids like the Daily Mail, MailOnline and the Mail on Sunday for disclosing her private affairs and for violating copyright protections over her letter.
In the United States, such a letter leaked to the media would be deemed protected by the freedom of the press. Moreover, our tort for the public disclosure of embarrassing private facts has an exclusion for “newsworthy” stories. The exception is so broad that many have complained that it has “swallowed the tort.” For example, in Sidis v. F-R Publishing Corp., 113 F.2d 806, 807 (2d Cir. 1940), rejected the privacy claim of a former child prodigy. The New Yorker magazine article was a vicious and mocking account of his failure to reach the expectations of many. The court described the article as a “a ruthless exposure of a once public character, who has since sought and has now been deprived of the seclusion of private life.” However, it held that it did not invade his privacy under the tort because “Regrettably or not, the misfortunes and frailties of neighbors and “public figures” are subjects of considerable interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.”
In this case, the letter was given or leaked to the media. While Meghan could accuse her father or others of a privacy violation, she pursued the media and Judge Warby not only ruled in her favor but ruled against an appeal. He ordered the defendants to publish an account on the front page of their newspapers.
In the ruling, Warby simply declared that “It was, in short, a personal and private letter. 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.” The issue however is not whether the material was private but whether such privacy overcomes the right of the media to cover such newsworthy content.
Meghan has demanded that the publication be kept posted online for weeks and called this a great victory:
“The world needs reliable, fact-checked, high-quality news. What The Mail on Sunday and its partner publications do is the opposite. 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,” Meghan said in a statement following the ruling, adding, “I share this victory with each of you—because we all deserve justice and truth, and we all deserve better.”
I see nothing to celebrate. I have no love for tabloid newspapers but I fail to see any line protecting the free press in such a ruling. There is also the matter of the copyright claim that Warby accepted: “The claimant says, further, that the Letter is an original literary work in which copyright subsists; she is the author of that work, and of a draft she created on her phone (“the Electronic Draft”); and the Mail Articles infringed her copyright by reproducing in a material form, and issuing and communicating to the public, copies of a substantial part of the Electronic Draft and/or the Letter.”
The defendant stipulated that such a claim is valid in England:
36. The defendant admits that the relevant qualifying conditions were met, so that “any literary work that was original and the claimant’s own intellectual creation would qualify for copyright protection in the United Kingdom and (if she were the sole author) she would be the first owner of such copyright.” There is no dispute that the Electronic Draft and the Letter were both literary works, which were recorded in writing in or before August 2018. Given that the Letter is entirely derivative of the Electronic Draft, there is an issue as to whether the requirement of originality is met. For the purposes of this application, however, the claimant limits her claim to infringement of copyright in the Electronic Draft.
The closer question for the court was the question of infringement, but it again ruled against the media. What is fascinating is the letter was given to a US reporter where this would be protected but Warby dismisses the argument:
Here, the work was not (on the claimant’s case at least) intended for commercial exploitation. But the defendant was dealing with what it knew to be an unpublished work. If the provision of the Letter to the defendant’s US reporter was not unlawful there, its onward transmission to the defendant’s representatives here may have been unlawful. The defendant copied a large and important proportion of the work’s original literary content. The use involved an infringement of the claimant’s privacy rights and was, with the modest exception I have identified, irrelevant to any legitimate reporting purpose and disproportionate to any such purpose. There is no real prospect that the court would reach any different conclusion after a trial.
The result is a blow to the media to be able to report on newsworthy material that it acquired from sources, even if legal or protected in the United States.
I personally have no interest at all in the Royal family or Meghan’s relationship with her father or anyone else. However, this would clearly be deemed newsworthy in the United States. It highlights the extreme differences between the two countries on both free speech and the free press. I had the honor of working for the BBC as its legal analyst and it remains a legendary journalistic organization. Yet, it operates under a hazy set of laws that often treats journalism as a privilege. As with free speech, there are fewer express or “bright-line rules” in Great Britain protecting there rights. In the meantime, the civil legal system presents tremendous pressures against the media in publishing stories. This includes defamation, privacy, and copyright laws that threaten high penalties for reporting that would be protected in the United States.
It is ironic and tragic that this “victory” was brought about by an American member of the Royal family. However, it is victory that no supporter of the free press should celebrate.
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