Meghan Markle wins copyright appeal over ‘leaked’ letter

The Duchess of Sussex, Meghan Markle, has won another battle in her ongoing copyright and privacy dispute with the publisher of the Mail on Sunday and the MailOnline over the leaking of a personal letter to her father.

Following a three-day hearing in November, the Court of Appeal has once again ruled in favour of Markle, reiterating that Markle had a reasonable expectation of privacy and copyright in the letter had been infringed.

Markle first sued Associated Newspapers after it published parts of the letter in August 2018, claiming that the publisher had misused her private information and infringed her copyright.

The case went to the High Court in February 2021, where Justice Warby  ruled in favour of Markle, leading Associated Newspapers to  appeal to the Court of Appeal.

Associated Newspapers argued that the High Court judge failed to properly evaluate the publication of the letter as a “rare case in which freedom of expression would outweigh copyright”.

The publisher also argued that the judge wrongly relied on his privacy analysis to reject its fair dealing defence to breach of copyright, citing the “limited scope” of the copyright in the letter and the “wide scope” of the concept of reporting current events.

In a unanimous  judgment handed down today, December 2, Sir Geoffrey Vos, Master of the Rolls, alongside Dame Victoria Sharp, President of the Queen’s Bench, and

Lord Justice Bean, agreed that Justice Warby had correctly evaluated the copyright and privacy issues, upholding the High Court’s decisions.

Vos said: “The copying of large parts of the original literary content of the letter infringed the claimant's privacy rights and was irrelevant and disproportionate to any legitimate reporting purpose.

“The reproduction was essentially for the purpose of reporting the contents of the letter, which was not a current event. The use made was not fair.”

Applying Ashdown

Associated Newspapers argued that the prior High Court judge had wrongly relied on prior case law in  Ashdown in his analysis of balancing public interest and copyright in the case.

The publisher argued that the judge did not mention “key differences” between the cases, including that the reasoning for publishing the letter was not, as was the case in Ashdown, “obtained improperly”, and that the judge had failed to evaluate the extent or weight of the “low level” of copyright protection the letter represented.

Vos said that, while the High Court judge had failed to explicitly mention Merkal’s Article 10 rights, it was the context of the discussion and that the judge’s references to Ashdown were correct.

Fair dealing copyright issue

When addressing whether Warby wrongly relied on his privacy analysis to reject the fair dealing defence, Vos again reiterated that the judge did understand the nature and degree of originality involved in the letter and that it could affect the fair dealing defence.

He reiterated that Associated Newspaper’s counsel did not point to a triable issue in relation to the rejection of the fair dealing defence, ruling that the fairness of the reproduction of the letter was “very limited.

Vos concluded: “I repeat that the judge's decision, looked at as a whole, was careful and detailed”.