Is an obscure point of copyright law really worth all of this trouble?
Meghan Markle made her first public appearance Tuesday since the abdication crisis exploded, and was all smiles as she boarded a sea plane to visit a women’s center in downtown Vancouver.
On the other side of the Atlantic, however, decisions made in her old life continued to haunt her. The incredible prospect that Meghan might face her estranged father, Thomas Markle, in a British court, and be subjected to a humiliating grilling by the country’s finest legal minds, drew a step closer.
The development came after the Mail on Sunday filed paperwork detailing how it intends to defend allegations made by Meghan that her copyright was infringed by the newspaper when it published excerpts of a hand-written letter to her father.
The new legal papers say a bitter Thomas Markle felt “hung out to dry” by the royals, and was not supported by royal staff ahead of the wedding.
Although most observers agree that Meghan’s copyright was indeed infringed and she has a good chance of winning the case, it’s hard to see how any victory that involved Meghan being dragged through court and having her character publicly questioned and her troubled relationship with her father forensically exposed could be regarded as anything other than pyrrhic.
However, Meghan and Harry have made it clear that they are determined to press the case, which could see top lawyers tearing chunks out of Meghan in the witness box.
There may now be a financial incentive, too: The Telegraph estimates that the Sussexes have already spent £350,000 on legal fees, and dropping the case would entail not just writing that off, but also picking up the Mail’s legal bill, which is likely to be similar.
The dispute centers around a letter first mentioned by a group of “five friends” who sat down with People magazine in early 2019 to defend Meghan. One friend said that after the wedding, Meghan wrote her dad a letter saying: “Dad, I’m so heartbroken, I love you. I have one father. Please stop victimizing me through the media so we can repair our relationship.”
The friend said Thomas wrote her “a really long letter in return, and he closes it by requesting a photo op with her.”
Days later, Thomas Markle shared Meghan’s letter with the Mail on Sunday and they published excerpts of it, claiming Meghan had mischaracterized it and him.
The letter cast some doubt on Meghan’s claims, but was by no means a slam dunk.
Most people dismissed it as yet more bitter ramblings by Meghan’s dad, and the issue was almost completely forgotten by the wider world when Harry stunned journalists by announcing legal action against Associated Newspapers on the last day of his tour of Africa, which, up until then, had been a wild success.
The Sussexes have, it would appear, a watertight case: British copyright law states that you cannot publish a private letter without the author’s consent.
The fact that the person who received the letter has given it to you matters not a bit. English law has some “fair dealing” exemptions, but these mainly deal with incorporating the published text of books into articles about those books.
The 44-page defense argues that Meghan made public the letter she wrote to her dad, but misrepresented what she had written in it to paint her in a more flattering light, and he therefore had the right to fight back.
If the case goes ahead, it is likely to be toward the end of the year.
The paperwork filed by Associated Newspapers, owner of the Mail group, reported by a number of U.K. media institutions including the Mail itself, ITV News, and The Telegraph suggests a nightmare scenario for the Sussexes: that the newspaper has secured the close co-operation of Thomas Markle, and that he is prepared to testify against her.
Meghan would therefore likely be obliged to give evidence against her own father if the case went to trial.
While it seems incredible that Meghan would allow herself to get into a situation where she faced being humiliated and having her character traduced in a British court by her father, many warned Harry and Meghan that this was exactly the situation they would end up in when they filed the legal suit against the Mail on Sunday.
When the legal action was announced in October, Harry claimed the alleged unlawful publication of the private letter was done in “an intentionally destructive manner” to “manipulate” readers.
However, in this kind of legal action, a lot of ancillary mud can get thrown. The Associated Newspapers have attacked claims made by a friend of Meghan in People saying she was “calling, texting, even up to the night before the wedding,” on May 19, 2018, after Thomas had to pull out following an emergency heart procedure.
The court documents say the last message Mr. Markle received was a text sent on May 17 “admonishing him for talking to the press, telling him to stop, and accusing him of causing hurt to his daughter” who “did not ask how he was or how the surgery had gone.”
The document says Mr. Markle felt “hung out to dry” and claims no one came to see him ahead of the wedding, whereas the duchess’ mother, Doria Ragland, had been personally informed of the royal engagement by two British embassy officials who visited her Los Angeles home.
Thomas says he did not receive “any cards or well wishes” and even contradicts the duchess’ claim that she funded herself through university, saying: “Mr. Markle had supported the Claimant throughout her childhood and youth. He had paid her private-school fees. He had paid all her college tuition, and after she left Northwestern University he continued to pay off her student loans, even after she had landed a well-paid role in Suits.”
Associated Newspapers argue that: “Following the publication of the People interview and reports of the People interview, neither the existence nor the contents of the letter were confidential. Mr. Markle was also entitled publicly to correct the false and damaging (to him) information that had been given about his conduct in the People interview, and to have as much of the letter and its contents published as was necessary for that purpose.”
The defense also alleges that Mr. Markle has not heard from his daughter since August 2018, when she sent the “immaculately copied out” and “self-congratulatory” letter.
Pointing out that it was written “in her own elaborate handwriting” with “no crossings-out of amendments,” the newspaper group claims “it is to be inferred also from the care the Claimant took over the presentation of the letter that she anticipated it being disclosed to and read by third parties.”