Embedded Files
LEADING ARTICLE
The Times view on Meghan’s High Court victory: A Very Private Duchess
Her triumph over the Mail on Sunday publisher raises troubling issues
Saturday February 13 2021, 12.01am, The Times
There is no question the Duchess of Sussex secured a significant victory in her legal action against the Mail on Sunday. Meghan was widely regarded to have taken a substantial risk when she sued the newspaper for publishing the contents of a five-page letter she had written to her father after their relationship became strained following his failure to attend her wedding to Prince Harry.
It was possible that both she and her father would have had to give evidence in court, laying bare the depth of the family rift for all to see.
But Lord Justice Warby not only spared her this ordeal by issuing a summary judgment rather than proceeding to a full trial, but he ruled comprehensively in her favour. He concluded not only that the Mail on Sunday had breached her right to privacy but also her copyright as the author of the letter.
Many admirers of the duchess will no doubt welcome this win over the newspaper. At a human level, it is easy to feel sorry for her. After all, who would want the contents of a painful letter splashed all over the press?
Nonetheless Mr Justice Warby’s ruling raises troubling questions that go beyond this immediate case and has wider implications for the freedom of the press and the relationship between public figures and the media.
Indeed, the verdict is merely the latest advance in judge-made privacy law that has been gathering pace under the human rights act.
Given what was at stake, it was all the more remarkable that Mr Justice Warby chose to issue a summary judgment.
It used to be the case that libel and privacy cases, which touch on issues that affect society as whole, were always heard by juries. Now not only can a single judge determine the law but a summary judgment means there is not even any public airing of the evidence. When evidence is not heard, it is hard to see how complex and sensitive cases can be determined.
Mr Justice Warby ruled that a summary judgment was appropriate because there was no reasonable prospect of a court coming to a different conclusion.
But while there is a presumption in law that the contents of private correspondence should remain confidential, that has always been subject to the circumstances of each case. Indeed, a court ruled in 2015 that letters written by Meghan’s father-in-law, the Prince of Wales, should be made public.
In this case, important questions including the circumstances by which the letter came about and the role of the duchess as a public figure would have been explored at trial.
This matters because Mr Justice Warby’s judgment creates a precedent that will have a chilling effect on the media. This case came about because the newspaper was handed the letter by Meghan’s father after her friends selectively leaked details to a US publication. This ruling effectively establishes a strengthened right for people in positions of power, or in the public eye, not only to their privacy but to control press coverage.
It means that the press will have to consider this verdict before publishing any leaked letter. That way lies a carefully managed feed of public relations curated information containing only that which public figures choose to reveal.
This case, which may yet be subject to an appeal, should prompt a debate about the extent to which the law in this area is evolving. A balance needs to be struck between privacy and freedom of expression. And it should be up to parliament,
and not a judge acting alone, to strike it.
Page updated
Google Sites
Report abuse