British Court Rules Against The Press In Lawsuit By 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 family personnel by Meghan.  All that sensational coverage has distracted from a far more substantive and expensive matter.  Meghan only won a case against Associated Newspapers and the judgment by London High Court Judge Mark Warby should be an issue for anyone who appreciates the independence of the media.
The situation included the publication of information from a letter which Meghan wrote to her father after she married Prince Harry in 2018. She sued Associated Newspapers, which publishes U.K. tabloids such as the Daily Mail, MailOnline and the Mail on Sunday for displaying her private affairs and also for violating copyright protections over her letter.
In the United States, such a letter leaked to the media will be deemed protected from the freedom of the media.  Additionally our tort for the public disclosure of embarrassing private facts comes with an exclusion for”newsworthy” stories.  The exclusion is so extensive that most have complained that it has”consumed the tort.”  By way of example, in Sidis v. F-R Publishing Corp., 113 F.2d 806, 807 (2d Cir. 1940), rejected the privacy promise of a former child prodigy. Even the New Yorker magazine article was a vicious and due to his failure to make it to the expectations of many. The court described this post as a”a ruthless exposure of a formerly public character, that has since sought and has been part of this seclusion of life” However, it stated that it did not invade his privacy under the tort since”Unfortunately or maybe not, the misfortunes and frailties of neighbors and”public figures” are subjects of considerable interest and conversation to the rest of the populace. And when such are the mores of their community, it might be unwise for a court to bar their expression in the newspapers, novels, and magazines throughout the day”
In this case, the letter was leaked or given to the media. While Meghan could accuse her father or others of a privacy breach, she chased the media and Judge Warby not only ruled in her favour but ruled against a charm. He ordered the defendants to print an account to the front page of their newspapers.
From the judgment, Warby simply declared that”It was, in short, a personal and private letter.  The majority of what was printed was on the claimant’s personal behaviour, her feelings of distress about her father’s behaviour–as she saw itand the consequent rift between them”  The matter however isn’t whether the content was private but if such privacy overcomes the right of these media to pay these newsworthy content.  
Meghan has required that the book be stored posted online for weeks and called this a great success:

“The world needs reliable, fact-checked, high quality news. We all lose when data sells over fact, when ethical exploitation sells over decency, and when businesses produce their business model to profit from people’s pain,” Meghan said in a statement after the ruling, including,”I share that success with all you–since all of us deserve justice and truth, and all of us deserve .”

I find nothing to celebrate.  I have no love for tabloid newspapers but I didn’t observe any line shielding the free media in this judgment.  There is also the matter of this copyright claim which Warby accepted:”The claimant says, further, that the Letter is a unique literary work in which copyright subsists; she is the author of the work, and also of a draft she made her telephone (“the Electronic Draft”); and the Mail Articles infringed her copyright by copying in a material form, and communicating and devoting to the public, copies of a significant part of the Electronics and also the Twist.”
The defendant stipulated that such a claim is valid from England:

36. The defendant admits that the applicable qualifying conditions were met, so that”any literary work which was original and the claimant’s own intellectual creation could qualify for copyright protection in the uk and (though she had been the only author) she’d be the primary owner of such copyright” There’s absolutely no dispute that the Electronic Draft and the Letter were equally literary works, that have been recorded in writing in or before August 2018. Given that the Letter is entirely derivative of the Electronic Draft, there is an issue regarding whether the need for originality is met. For the purposes of this application, but the claimant limits her promise to breach of copyright from the Electronics.

The nearer issue for the court was that the question of infringement, but it repeatedly ruled from the media.  What’s intriguing is that the letter was given to a US reporter at which this could be shielded but Warby dismisses the debate:

However, the defendant was dealing with that which it knew to be an unpublished work. In case the supply of this Letter to the suspect’s US reporter wasn’t criminal there, its onward transmission to the suspect’s representatives here might have been bogus. The defendant copied a big and important proportion of their work’s original literary content. The use involved a breach of the claimant’s privacy rights and was, together with the modest exception I’ve identified, irrelevant to any valid reporting function and disproportionate to any such purpose. There’s absolutely no real prospect that the court could reach any different conclusion following a trial.

The outcome is a setback to the media to be able to report newsworthy substance that it obtained from sources, even though protected or legal in the United States.
Personally, I have no interest whatsoever from the Royal family or Meghan’s connection 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 nations on both free speech and the free media. I had the honour of working for the BBC as its own accountant and it remains a mythical journalistic business. Yet, it functions under a hazy pair of legislation which often treats journalism as a privilege. Just like free speech, you will find fewer state or”bright-line rules” in Great Britain shielding there rights. In the meantime, the civil legal system poses tremendous pressures against the media in publishing tales.  Including defamation, privacy, and copyright legislation which threaten high fines for reporting which would be protected from the United States.
It’s ironic and heartbreaking that this”success” was caused by an American member of the Royal family.

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