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The Duchess of Sussex wins her privacy claim against Associated Newspapers

Posted on 11 February 2021

Emma Woollcott, Partner and Head of Reputation Protection and Crisis Management, was interviewed by the BBC One News at 10pm on Thursday 11 February to comment on the High Court's judgment.

Ms Markle sued over a series of articles published in February 2019, which reproduced lengthy extracts from a letter she wrote to her father shortly before marrying Prince Harry in 2018. The letter had first been referred to by US magazine People, and then provided by Mr Markle to the Mail. Associated attempted to defend its publication by arguing that the letter was never intended to be private, and that friends of Ms Markle's had made misleading claims in public about its contents. In addition to bringing proceedings on privacy grounds, Ms Markle claimed for infringement of copyright and breach of data protection (which claim was not part of the summary judgment application). On copyright, the newspaper said that a full trial was necessary to question others who may have contributed to the letter and affected her rights.

On Ms Markle's application for a Summary Judgment, Warby J found that the disclosures were "manifestly excessive" and constituted an unlawful breach of her privacy. He held that the only justification for publishing the contents of her private letter would have been to correct inaccuracies in the People article but, save to a very limited extent, publication was "not a necessary or proportionate means of serving that purpose". He was persuaded on copyright however that, while the letter satisfied the test of originality, and defences of "fair dealing", freedom of expression or public interest had no prospect of success, there should be a trial to examine ownership, where there might have been joint authorship or several copyrights with different ownership.  

Commenting on the judgment, Mishcon de Reya's Head of Reputation Protection, Emma Woollcott said: "This is a resounding victory for the Duchess in her privacy claim, which upholds the principle that personal correspondence will typically attract a reasonable expectation of privacy, no matter the profile of the writer. It should send a salutary warning to publishers on the limits of their ability to argue that they are seeking to "correct the record" when breaching individuals privacy rights."

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