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IP/Entertainment Case Law Updates

HRH, The Duchess of Sussex v. Associated Newspapers Limited

Following a summary judgment victory for Meghan, Duchess of Sussex (also known as Meghan Markle) in her misuse of private information and copyright case against British tabloid publisher for publishing portions of letter written to her father, High Court in London orders newspapers to publish notices of Markle’s win on their front page.

In the High Court of Justice in London, Meghan, Duchess of Sussex, also known as Meghan Markle, brought claims for misuse of her private information and copyright infringement against Associated Newspapers Limited, the publisher of British tabloids The Mail on Sunday and MailOnline, for publishing and disseminating five articles relaying, without permission, extracts of a personal letter she had written to her father. In connection with these publications, defendant used headlines reporting, for example, “Meghan’s shattering letter to her father” and that Markle’s father had “broken her heart into a million pieces.”

After striking a number of Markle’s allegations of dishonesty and malicious intent at the initial pleading stage (read our summary of the High Court’s decision here), the High Court in February entered summary judgment in Markle’s favor on defendant’s liability for misuse of private information and on certain aspects of Markle’s copyright claim—subsistence (similar to establishing valid, copyrightable subject matter) and infringement. The High Court left the issue of copyright ownership for trial based on defendant’s contention that Markle is not the sole owner of the copyright in the letter, as the letter was co-authored by a member of the Kensington Palace communications team. The High Court observed that this issue was “of minor significance in the overall context” and opined that defendant’s “improbable” position “lacks any direct evidence.”

Following its summary judgment ruling, the High Court considered the remedies available to Markle. In particular, she sought a declaration as to her rights, injunctive relief, an account of defendant’s infringement profits, damages for misuse of private information and costs. With respect to the misuse of private information claim, the High Court ultimately ordered defendant to publicize Markle’s summary judgment victory on the front pages of The Mail on Sunday and MailOnline in a font size no smaller than the original headline it used.

In granting Markle’s application for this declaration, the High Court relied on relevant law (Directive 2004/48/EC and Part 63 Practice Direction) commonly used in intellectual property litigation, which provides a court with discretion to order “appropriate measures for the dissemination and publication” of the relevant decision “including displaying the decision and publishing it in full or in part.” Questioning whether a misuse of private information claim fell within the scope of “intellectual property,” the High Court nevertheless found that factors such as the deterrence of defendant and other potential infringers warranted the posting of a shortened version of Markle’s proposed declaration. The High Court emphasized the fact that the original story about the letter to Markle’s father continued to be displayed online even after the High Court held such publication to be a misuse of private information and copyright infringement, viewing the continued publication as “a form of defiance.” The High Court also reasoned that the public was less inclined to review the entirety of the lengthy decision on the judiciary website and that defendant’s coverage of Markle’s summary judgment victory was “not very informative about the issues in the case and how they were resolved.”

Recognizing that “such an order represents an interference with freedom of expression,” thus requiring that it be justified, necessary and proportionate “in pursuit of a legitimate aim,” the High Court concluded that it was unnecessary to resolve the larger issue, as Markle had consented to “lesser” and more targeted versions of the statement to be published by the newspapers.

The High Court also issued a final injunction restraining defendant’s misuse of private information on the grounds that defendant significantly interfered with Markle’s rights and damages alone were an insufficient remedy. In the absence of an injunction, the High Court reasoned, there was a real risk that defendant might continue publishing the information from the letter because, among other things, the case had been defended vigorously, publication of the story continued in spite of the summary judgment ruling (without any explanation) and defendant had also raised the brand-new argument that the letter has become public domain information (which it has not). The High Court provided for a “limited public domain carve-out” from the injunction “to ensure that it does not prohibit publication of a fair and accurate report of the judgment” or commentary on the judgment, while prohibiting snippets of the letter from being reproduced in any other context than the summary judgment decision.

As for defendant’s copyright infringement liability, the High Court ordered an additional hearing to account for defendant’s infringement profits and declined to grant an interim and final injunction. The court also granted Markle 90% of her costs in making the summary judgment application.

Summary prepared by Sarah Schacter and Mary Jean Kim

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