Prince Harry and Meghan Markle Face Day One of Their Tabloid Court Battle
Meghan Markle claims “The Mail on Sunday” broke copyright law when it published a letter. The paper says her friends were briefing the media for her. Now the court case begins.
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The war between Prince Harry, Meghan Markle and the British tabloids has rumbled for some time. Earlier this week, Harry and Meghan said they would no longer deal with four British papers—The Sun, Daily Mail, Daily Mirror, and Daily Express—in any way, shape, or form.
Now the battles goes to court. Tomorrow, Friday, legal teams for Markle and the publisher of the Mail on Sunday will finally lock horns in person, after a lengthy shadow war which began when Meghan claimed the Mail broke an obscure point of copyright law when it published a private letter to her dad, and sued.
Associated Newspapers, which publishes the Mail, responded that Meghan had abdicated her right to privacy by briefing friends on the letter, who then gave an interview to People magazine publicizing its content.
Meghan hit back saying, to general amazement, that she had no idea her friends were doing the sit down with People. Meghan is suing Associated Newspapers for damages for misuse of private information, violating her right to privacy under Europe’s General Data Protection Regulation and infringing her copyright.
The stage is set for a blockbuster legal showdown at which—if it does not go her way—Meghan Markle, the wife of the sixth-in-line to the British throne, may stand accused of lying.
The case to date has been conducted largely through a series of written exchanges and publication of filings.
Tomorrow, the first actual oral hearing taking place, at which Associated Newspapers are attempting to strike out various “particulars of claim” filed by Meghan’s side.
Because of the Covid-19 crisis, journalists will be able to follow the opposing sides opening arguments on Microsoft teams.
Despite the somewhat academic nature of the proceedings tomorrow, this limbering up exercise may yet turn out to be a firework-filled first glimpse at the characters and arguments in what some are predicting could turn out to be “one of the biggest train wrecks in court of all time.”
In Meghan’s corner: the attack dogs of London legal firm Schillings, who have made a name for themselves, despite some high-profile fails, as the litigator of choice for celebrities seeking to go after newspapers who have invaded their privacy.
In Associated’s corner will be Adrian Speck and Antony White, two of the most feared barristers of their generation. White, in particular, is famed in the industry as a cross-examiner of exceptional ability, known for his clinical and unemotional destruction of witnesses.
White’s cross-examination skills should be of particular concern to Meghan given that her case may come down to an issue of character, specifically whether or not the judges believe that five of her most trusted friends sat down with People magazine and gave an extensive and lengthy interview without her knowledge, blessing or permission.
Meghan claims that Associated Newspapers broke the law when it published a letter she had written to her errant father, Thomas.
Prima facie, as lawyers like to say, Meghan would be assumed to prevail; by an ancient quirk of copyright law in the UK, one which is the bane of biographers, you cannot publish a letter without the author’s permission, even if you happen to be the recipient or owner of the physical letter, or the owner of the physical letter gives you permission to do so. No such legislation applies in the USA.
The friends said in the interview they were seeking to defend their pal in the face of a tidal wave of unprecedented “global bullying.”
In the course of the interview, one of them talked at some length about the letter that Meghan had sent to her father.
One of these friends told People that after the wedding, Meghan wrote her troublesome father 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 went on, “He writes her a really long letter in return, and he closes it by requesting a photo op with her.”
Thomas was sufficiently provoked by this interview to furnish copies of the letter in question to the Mail on Sunday, which went ahead and published it, provoking the copyright infringement lawsuit, which, with less than impeccable timing, was announced by Harry and Meghan at the tail end of what had up to then been a successful tour of Africa.
While copyright infringement seemed to many a curious cause to risk one's reputation and fortune for, there seemed little doubt at first that Meghan would win.
But Associated came up with a cunning defense. They are now arguing that Meghan effectively put the letter into the public domain herself by allowing those “five friends” to do the People interview. It is expected that more detail on this strategy will be revealed on Friday when the legal teams are required to publish the outline of their cases.
In one of the various filings lodged at the High Court, Associated responded to Meghan’s claims of privacy invasion by saying that the contents of the letter, were not private and confidential, because Meghan “caused or permitted” the friends to dish on the contents of the letter. They argued: “Whatever the position may have been earlier, following the publication of the People interview… neither the existence nor the contents of the letter were confidential.”
Meghan’s response to this, filed last Friday, was to claim that she “did not know that such an interview had been given or, more importantly, that any reference would be made to the letter.”
Meghan points out, accurately, that the Mail’s case is “underpinned” by the allegations that “she procured or authorized the reference in People magazine to the existence and content of the Letter she wrote and the response she received from her father,” adding, “The true position is that (she) did not procure or authorize this reference,” and that she “did not know that her friends were giving an interview to People magazine, let alone that one of them would refer to the Letter. Had she done so, she would not have agreed to such a reference.”
The friends quoted were swiftly and widely identified by the media. The Sun, for example, claimed they were Meghan’s Pilates teacher Heather Dorak; friend Benita Litt, whose kids were pageboys at the wedding; Suits actress Sarah Rafferty; actress Janina Gavankar; and Northwestern University-era friend Lindsay Jill Roth.
Mark Stephens, a media lawyer at law firm Howard Kennedy, told The Daily Beast: “To begin with it seemed she had a good case. The letter was private and it was not a public matter. But Associated’s defense was astonishing. They essentially accused her of curating a media and briefing war against her father. She then denied this, but it stretches credulity to think that five of her friends would sit down with one media organization and discuss her relations with her father in this level of detail and that Meghan would not be aware of it.
“Even if she wins on a technicality, the only person with anything to lose in this is Meghan. She has very little to gain if she wins, but if she loses, this could be one of the biggest train wrecks in court of all time.”
Of course, it’s a frequent tactic of newspaper publishers, and Associated is well known for it, to intimate to the defendant that taking the case all the way is just not worth it reputationally.
For example, Meghan and Harry have already been forced to publish intimate text messages they sent to her dad, meaning we now know rather more about their relationship than we would have done had this case never been initiated.
Associated Newspapers would of course be perfectly happy for Harry and Meghan to give up or settle before the start of an actual trial (which would likely take place closer to Christmas or even in early 2021) at which Meghan would certainly be called as witness, and so would her father.
And while many observers harbor a deep suspicion that ultimately they will fold, Meghan and Harry have a deeply idealistic and stubborn streak.
They may just take it all the way.
They may even win.
But it’s hard to see for them a victory that would be anything other than deeply pyrrhic, and Friday’s hearing will provide some clues as to just how much pain Associated Newspapers will try to inflict on the couple.