October 11, 2019

A Right Royal Hullabaloo: The Duchess of Sussex v The Mail on Sunday

Megan Markle Duchess Prince Harry

But is Meghan Markle correct to allege breach of copyright?

The legal action alleges breach of privacy and infringement of intellectual property. There are a number of potential claims: copyright infringement, breach of moral rights, defamation, misuse of private information, human rights abuse and data protection rights. In this blog I will address the claim to infringement of copyright only.

What copyright?

Copyright protects original literary works and this includes letters. The owner of the copyright is the author of the letter, not the addressee who owns the actual letter but not the content. So Meghan owns the copyright in the letter to her father. Publication of it would require her consent.

When the story first broke, I postulated whether her father might enjoy a licence to share the letter with whom he chooses, but so far as I know there is not currently any English law precedent for this so a “new” defence would have to be created. The accepted fact is that Associated Newspapers did not obtain Meghan’s permission to publish the letter. It nevertheless intends to defend the claim, but how?

Defence

A statutory defence is available if the use made of the letter was for the purposes of criticism, revision or quotation, or for the purposes of reporting current events; section 30 Copyright Designs and Patents Act 1988.

As a private letter it was not intended for public consideration, and the letter had not been publicly published prior to The Mail on Sunday doing so. I do not see how the defendant can rely on the defences of criticism or review. So is the defence of reporting on current events available?

The problem for Meghan might be that prior to the letter being handed over to The Mail on Sunday some friend(s) of hers had earlier commented to the American celebrity gossip magazine, People.com about Meghan writing to her father, and characterised the content as being loving and conciliatory. At the time (back in February) it was widely believed that Meghan had authorised her friends to brief the magazine; something she has not (yet) denied.

Mr Markle has said, in justifying the release of the letter to the press, that the letter had been presented by Meghan’s friends (and hence in the media) in a way that vilified him and was not true. He wants to put the record straight and defend himself.

The newspaper will need to establish that publication was in the public interest. It occurs to me that given what had previously been reported about the letter a newspaper would be entitled to argue that a corrective piece was in the public interest. By her friends purporting to reveal what the gist of the letter said with Meghan’s consent the quality of confidence has been removed. The publication of the letter to disclose its true content and meaning is therefore within the reporting of current events.

The truth will out!

Even if Associated Newspapers should have a defence to the claim to breach of copyright, there remain the myriad of other claims mentioned above. There is some precedent for such claims, see Prince Harry’s father’s case against the same newspaper in 2006, which Prince Charles won. Now that Meghan has issued proceedings, the case will attract intense media and legal attention and no doubt much controversy.

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