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IP/Entertainment Case Law Updates

HRH, The Duchess of Sussex v. Associated Newspapers Limited

In case against publisher of British tabloids for publication of five articles republishing portions of August 2018 letter written by Her Royal Highness, The Duchess of Sussex to her father, High Court in London strikes allegations of dishonesty and malicious intent as irrelevant, disproportionate to case or otherwise inadequately pleaded.

Claimant, Her Royal Highness The Duchess of Sussex, also known as Meghan Markle, sued Associated Newspapers Limited, the publisher of British tabloids The Mail on Sunday and MailOnline, in the High Court of Justice in London, for damages and injunctive relief as a result of the publication of five articles that republished, without permission, portions of a private and confidential August 2018 letter written to her father, Thomas Markle. Defendant published the at-issue articles using headlines reporting, among other things, that Markle’s father had “broken her heart into a million pieces,” and purporting to reveal Markle to be a “narcissistic showman whose self-control is wavering.” 

According to Markle’s Particulars of Claim (akin to a plaintiff’s complaint), the letter was private and confidential, and contained her intimate thoughts and feelings about her father’s health and their relationship. Markle asserted that defendant cherry-picked only certain contents of the letter in order to show her in a negative light and stir up issues between her and her father, and purposefully misled the public and distorted the contents of the letter by stating that the excerpts published by defendant were the full contents of the letter. Therefore, defendant’s publication of the letter’s contents was an unjustified infringement of Markle’s right to privacy and a misuse of her private information that caused her considerable distress, damage, humiliation and embarrassment. Markle also alleged breach of duty under the European Union’s General Data Protection Regulation and copyright infringement. 

Defendant argued that Markle is a “major public figure” whose conduct is a proper matter for public scrutiny, that the letter was neither private nor confidential, and that Markle lacked a reasonable expectation that it would remain private. As part of its defense, defendant sought to strike specific portions of Markle’s allegations supporting her misuse of private information claim alleging that defendant acted dishonestly, in bad faith and with malicious intent in deliberately stirring up Markle’s purported conflict with her father. The High Court largely sided with defendant and struck various allegations on the grounds that dishonesty, malice or bad faith were irrelevant to liability for misuse of private information; inadequately pleaded; or, from a case management perspective, disproportionate to the core of the case. 

First, the High Court viewed the Particulars of Claim paragraph by paragraph and struck as irrelevant allegations concerning defendant’s purported dishonesty, malice or bad faith in publishing the letter. In arriving at this conclusion, the High Court explained that because dishonesty is not a necessary element to state a cause of action for the misuse of private information, these allegations were “likely to obstruct the just disposal” of the proceedings. Permitting the allegations to remain would unnecessarily require an investigation having no bearing on the issue of liability.

Second, the High Court struck allegations of dishonesty and malice as inadequately pleaded. Similar to the heightened pleading requirements imposed by the Federal Rules of Civil Procedure, allegations of fraud, misrepresentation or willful default must be set forth with particularity and supported by credible material. In this case, the High Court held that a number of Markle’s allegations fell short of this standard because they lacked clarity as to what was allegedly dishonest (that defendant improperly edited the letter or suppressed portions of the letter) and who was alleged to have been dishonest (the author of the articles or the broader editorial team). Furthermore, the statement was unsupported by sufficient details and facts to infer the alleged dishonesty. 

For similar reasons, the High Court struck as inadequately pleaded allegations of “dishonest distortion” set forth in support of Markle’s claim for aggravated damages in connection with her misuse claim. This aspect of the claim alleged that defendant cherry-picked or deliberately omitted sections of the letter in a calculated attempt to portray Markle in an unfavorable light, and deceived and misled its readers by claiming to be disclosing the “full content” of the “five-page letter.” The High Court struck allegations regarding defendant’s purported conduct toward Markle’s father in support of Markle’s contention that defendant was one of the tabloids that deliberately sought to dig up or “stir up” issues between Markle and her father. According to the High Court, these allegations lacked the required specificity because Markle could not give details of what was done to her father and when. In striking these allegations, however, the High Court noted its ruling was without prejudice, leaving Markle with the ability to replead the case by amending the Particulars of Claim.

Finally, the High Court exercised its power to strike allegations on case management grounds to determine the “real issues” at stake. Much like the proportionality requirement for discovery under the Federal Rules of Civil Procedure, the High Court’s justification was based on confining the case within manageable bounds to determine the “real issues” at stake. Among these allegations, the High Court explained, Markle’s claims regarding defendant’s “agenda” of publishing intrusive or offensive stories about her could not stand, as they were based on nine distinct articles (written by different journalists) that Markle was not suing over. In addition to being disproportionate and wholly immaterial, the High Court concluded, the nine articles could not be used as a means to obtain damages for defendant’s publications, as they lacked the close relationship required as a matter of law.

Summary prepared by Linna Chen and Mary Jean Kim 

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