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The Duchess of Sussex vs The Daily Mail: Privacy and the Public Eye

Posted on 25 May 2021

Meghan Markle and Prince Harry's recent interview with Oprah Winfrey provoked fresh debate over the extent to which individuals in the public eye can legitimately expect privacy in their personal lives. Coming so soon after the Duchess's High Court victory against the Daily Mail for breach of privacy, the interview prompted surprise that she could fight for privacy in certain areas of her life while relinquishing it in others.

However, from a legal perspective, the two are not inconsistent. In England and Wales, the tort of misuse of private information is concerned with unauthorised disclosure or intrusion – in the Duchess's case the publication by the Daily Mail of a private letter to her father – and, as the Judge confirmed, modern privacy law is grounded in individual autonomy. A person does have the right to exercise close control over particular information about their private life: to decide whether to disclose anything about a given aspect of that life and, if so, what to disclose, when and to whom.

When considering a specific, alleged breach, the first question a court will ask is whether the claimant has a reasonable expectation of privacy in relation to the information in question. Although they may take into account the way in which the claimant has conducted themselves publicly, the focus is on the particular breach rather than any general expectation of privacy. If the first question is satisfied, the court will then assess whether the disclosure or intrusion is justified by the rights to freedom of expression and information of, in the Duchess's case, the Daily Mail and its audience. This is always a balancing exercise between the equal but competing rights to privacy and freedom of speech, and the extent to which the proposed disclosure is in the public interest is crucial.  

Ms Markle's case followed legal precedent that private correspondence will typically engage rights to privacy; the court found there was no good reason to publish, and that publication was "manifestly excessive" and not justified in the public interest, or otherwise. The Judge also confirmed the principle that, while public figures must (and do) accept a degree of intrusion that the ordinary person would not, as a matter of law public figures cannot be expected to give up all rights to a private life, including opening up private correspondence with family members to press scrutiny.

In that sense, public figures are not "fair game". Although Mr Justice Warby accepted that Ms Markle was someone with a "high public profile" about whom "much had been and continued to be written and published", the letter related not to that public role, but to her personal relationship with her father. He rejected the Mail's argument that because the Palace issued a statement about the fact that the Duchess's father did not attend her wedding, their relationship involved a degree of public exposure and therefore public interest.

It is certainly not the case that all media scrutiny of public figures will be unlawful. For example, an expectation of privacy may be outweighed by evidencing hypocrisy. It may be in the public interest to correct the false image a claimant has created of themselves as a reformed character, or where they have gained some personal advantage by doing so. But, overall, Ms Markle's victory is a reminder that even those very much in the spotlight can protect their privacy in discrete areas, and on specific occasions. Legally speaking, it is not all or nothing.

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