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Daily Mail breached Meghan Markle’s copyright and privacy

IN A JUDGMENT handed down today Mr Justice Warby rules that the Daily Mail indeed breached Meghan Markle's copyright and privacy by publishing a letter to her estranged father. He grants a "summary judgment" on the grounds that "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."

One issue that may go to trial is the authorship of the letter. The Daily Mail argued that it was a work of joint authorship, and because of the positions held by some of the alleged joint authors therefore partly a work covered by Crown Copyright. Mr Justice Warby said of this that the "factual and legal case on this issue both seem to me to occupy the shadowland between improbability and unreality". He nevertheless granted a hearing, not least because its finding would determine the damages for breach of copyright.

The judgment does not appear to deal with the interesting questions originally raised about Ms. Markle's right to defend the integrity of her "work" - that is, the letter - against alteration. We note that the judgment says that her team now "limits her claim to infringement of copyright in the Electronic Draft". This question of her so-called "moral right of integrity" may yet arise when it comes to deciding a penalty.

A further hearing is due on 2 March.

13 February 2021

Media lawyer Mark Stephens told the MailOnline: "The implications of today are that Meghan has silenced her critics and the journalists who would wish to leak these sorts of letters in the future, so effectively the media are being manacled." He also told BBC News that he expects the newspaper publisher to try to go to the Court of Appeal "to have a more definitive ruling on what the law is going forward... If you can't effectively report on leaked letters then in those circumstances the media holding people to account is going to be hampered".

The judgment has this to say: "There is no basis on which the court could conclude that, although the copying of the work was not fair dealing for news reporting purposes, the public interest requires the copyright to be overridden." In other words in this particular case the Court found that public interest did not override copyright. It is to be hoped that in genuine whistleblowing cases, for instance, courts would find that it did.

Once more, we conclude, the Daily Mail has sought to confuse genuine "public interest" with its hope that gossip will interest the paying public. This is confirmed, we think, by its argument that Meghan Markle's "relationship with her father and the circumstances in which he did not attend her wedding were matters of public interest," which the judgment quoted and rejected.

15 February 2021

We observe the MailOnline headline at 17:03 on 11 February: "Meghan Markle wins privacy case against Mail on Sunday and MailOnline over letter to father WITHOUT a trial. Publisher considers appeal". Feel that disappointment...

Had there been a trial, Mail executives could have been called as witnesses and whatever they said could have been reported contemporaneously as news without fear - under legal privilege, that is. It's harder to see how useful stories could thus be generated from s much more limited trial to decide the authorship of the letters.

And we now can't help mentioning am Express headline from 28 January: "Meghan Markle facing 'iron-clad defence' in court case warns expert - 'Hard to prove wrong'." The "expert" appears to be Christina Garibaldi - co-host of Royally Us. That's a YouTube channel, your Honour.

15 February 2021

5 March 2021: the court ruled that the Mail on Sunday must publish a front-page notice of this finding against it. It refused permission to appeal it. The question of damages remains to be resolved. We await the statement with interest. (Corrected 6 March 2021: it's specifically the Mail on Sunday that must publish.)