Meghan Markle letter: what the law says about the press, privacy and the public’s right to know
Britain's Meghan Markle, Duchess of Sussex, arrives to meet academics and students during a roundtable discussion on female access to higher education with the Association of Commonwealth Universities, at the University of Johannesburg, Johannesburg, South Africa, October 1, 2019.
(Photo: REUTERS/Toby Melville)

Hayleigh Bosher, Brunel University London

The Duke and Duchess of Sussex have announced plans to sue the Mail on Sunday and its parent company Associated Newspapers, after they published a private letter from Meghan to her father earlier this year.

In a press release, the lawyers for The Duchess of Sussex said that they have taken legal action over what they called an:

Intrusive and unlawful publication of a private letter written by the Duchess of Sussex, which is part of a campaign by this media group to publish false and deliberately derogatory stories about her, as well as her husband. Given the refusal of Associated Newspapers to resolve this issue satisfactorily, we have issued proceedings to redress this breach of privacy, infringement of copyright and the aforementioned media agenda.

A spokesman for the newspaper said: “The Mail on Sunday stands by the story it published and will be defending this case vigorously. Specifically, we categorically deny that the Duchess’s letter was edited in any way that changed its meaning.”

But can private letters be protected by copyright – and if so, who owns it? Copyright protects original literary works, among other things, such as books and literature – and this also includes letters. Therefore, a letter can be protected by copyright.

Who has copyright?

Under UK copyright law, the owner of a piece of work is usually the person who created it. Once a person owns copyright in a piece of work, the law allows them to restrict others from copying or sharing that work without permission. So, the content of the letter belongs to the writer of the letter – although the actual physical letter belongs to the recipient.

This means that in order to share the content of a letter, the permission of the writer would be required in order to avoid copyright infringement.

But there are exceptions to copyright. These are circumstances where permission is not needed – for example, if the use is for the purpose of criticism, review or quotation, or for the purpose of reporting current events. Each of the copyright exceptions have specific requirements that must be followed in order to benefit from them.

The exception for criticism, review or quotation requires that the material used was already available to the public – so this would not apply to a private letter. The exception for reporting current events requires that the use of the material is fair.

When considering if a use is fair, a court would take into consideration if the work had already been published, or whether it was confidential. The courts are unlikely to decide that use of material that is confidential was fair unless a legitimate and continuing public interest could be demonstrated, for example “leaked documents” with a clear public interest.

Public interest?

In 2006, the Prince of Wales sued Associated Newspapers after they published extracts from his diary. The prince also brought an action for copyright infringement and breach of privacy. In relation to copyright, it was found that the prince was the copyright owner and that the reproduction of the diary was an infringement of that copyright.

Associated Newspapers argued that they benefited from the copyright exception of news reporting, but the court found that the quotations from the journal had been chosen for the purpose of reporting on the revelation of the contents of the journal as itself an event of interest and not for the purpose of reporting on current events.

Privacy law

It is here that the European Convention on Human Rights comes into play. In the context of publishing private information, Article 8, which provides a right to respect for private and family life, home and correspondence, would be weighed against Article 10, which provides the right to freedom of expression and information.

In the UK, the Data Protection Act 2018 (the UK’s implementation of the General Data Protection Regulation (GDPR)) provides protection for personal information. This means that personal information cannot be processed or published without permission. There is a possibility of arguing that a breach of this law is allowed when it is necessary for the public interest, for example if it supports or promotes democratic engagement.

But just because something is interesting to the public, does not mean that it is in the public interest. Public interest requires a higher level of justification, in order to justify the breach of the individual’s human rights.

In this 2006 case, the Prince of Wales also argued that the information in his diary was confidential and therefore protected under Article 8. Associated Newspapers argued that the publication of the diary was in the public interest and permitted under Article 10.

The judge, The Hon Mr Justice Blackburne, agreed with the Prince of Wales, ruling that:

The right to be able to commit his private thoughts to writing and keep them private, the more so as he is inescapably a public figure who is subject to constant and intense media interest … [The Prince of Wales] is as much entitled to enjoy confidentiality for his private thoughts as an aspect of his own ‘human autonomy and dignity’ as is any other.

Although a letter and a diary are slightly different – in that a letter was intended to be read by the recipient and a diary is usually intended to be entirely private – it is likely that they would be treated the same in the circumstances of being published without permission.

So, in general, publishing a letter without permission could be ruled to be an infringement of copyright and breach of privacy and confidentiality.The Conversation

Hayleigh Bosher, Lecturer in Intellectual Property Law, Brunel University London

This article is republished from The Conversation under a Creative Commons license. Read the original article.