Can someone’s human right to privacy be overruled by journalists’ right to reveal information of public importance?

The United Kingdom is no stranger to high-profile lawsuits launched by celebrities – including members of the royal family – seeking to protect their privacy through the courts.

Whereas lawsuits of this kind often take the form of defamation cases, the one recently launched by Meghan, Duchess of Sussex – known before her wedding to Britain’s Prince Harry as Meghan Markle – against tabloid newspaper the Mail on Sunday, is unusual. It is a case not relying on defamation but only on privacy: she claims her right to privacy has been violated by DMG Media, formerly known as Associated Newspapers, the parent company of the Mail on Sunday and other tabloid newspapers.

The case is being heard via videolink.

The Duchess of Sussex is suing the tabloid over the publication of a personal letter she wrote to her father nearly two years ago.

“Whether or not private information can lawfully be published is a matter of balancing privacy and expression rights on the facts of each case,” Hugh Tomlinson, a barrister who previously represented Prince Charles in a privacy case, told Al Jazeera.

If Markle and her husband, Prince Harry, succeed in their case, it could have significant consequences for media freedom in the UK, including inhibiting the freedom of the press to report on public figures, analysts suggest.

Private letter

Markle’s case centres on a personal letter she wrote to her father, Thomas Markle, in August 2018, after he declined to attend her wedding because of illness. In her letter, the duchess said she was upset her father had contacted the press and had not returned her calls.

In February 2019, the Mail on Sunday published excerpts of her letter.

In October, she sued the newspaper for misuse of private information as well as breaches of copyright and the infringement of her privacy. She is seeking compensation under the General Data Protection Regulation and the Data Protection Act 2018.

Markle says the Mail on Sunday had “dishonestly” cut out some words and sentences from the letter in order to paint a misleading picture of the relationship between father and daughter. She claims the tabloid had “intentionally distorted or manipulated” part of the letter. She further accuses the newspaper of malicious intent.

The royal couple sees the case as a way of fighting back against wider coverage they consider to be unfair. But Tomlinson explains that malicious intent has little relevance in deciding whether or not her right to privacy has been infringed upon. However, if the paper is found to have been malicious, it could influence the amount of damages – should damages ultimately be awarded.

The Campbell case

The barrister representing the duchess, David Sherborne, referred in court to the most important legal precedent in privacy law: supermodel Naomi Campbell’s 2004 case against the Daily Mirror, in which she sued the Mirror for publishing a photograph of her attending a Narcotics Anonymous clinic in February 2001.

Campbell’s lawyers relied on the tort of breach of confidence. She won her case after the court ruled she was entitled to “invasion of privacy damages” from the newspaper.

In the case, Lady Hale referred to a “new tort of privacy”, inspired by the European Convention on Human Rights. The court ruled that the need for treatment of drug addicts was more important than the right of the public to know about it. The judgment emphasised that the state had a positive obligation to protect the right to privacy. This meant that courts must go beyond mere “non-interference” in the right to privacy and to create concrete mechanisms to protect privacy.

Meghan, Duchess of Sussex, and her husband, Prince Harry, have accused tabloid newspapers of having an agenda against them [File photo/Henry Nicholls/Reuters]

According to Colm O’Cinneide, professor of law at University College London, another way in which the state could give effect to this obligation is to enact legislation to protect privacy. The UK Parliament has, however, not enacted privacy legislation. One reason for this could be “because of fears of the reaction of the press”, said O’Cinneide.

“It is clear that Meghan and Harry are at war with the media. They have decided that the media has crossed a line,” said O’Cinneide.

Balancing rights

The European Convention on Human Rights was incorporated into UK law by the Human Rights Act of 1998.

Article Eight of the UK legislation states that everyone has the right to respect for their private and family life, their home and their correspondence.

But the Human Rights Act, in Article Ten, also protects freedom of expression: “This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

“There is also broad agreement as to what the new right of informational privacy, or the expanded action for breach of confidence, should protect; namely, the disclosure of information where ‘the person publishing the information knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential’,” wrote Lady Hale in the judgment in the Naomi Campbell case.

Reporting must reveal something of 'legitimate' public importance, rather than dispense gossip or trivia, no matter how much readers lap this up Geoffrey Robertson QC, human rights barrister

Courts in the UK first have to ask whether a plaintiff has a “reasonable expectation of privacy”. If this is the case, the courts will engage in a balancing inquiry – balancing the right to freedom of expression against the right to privacy. This enquiry is guided by the application of certain criteria contained in case law – most importantly the European Court of Human Rights case of Von Hannover v Germany, which involved a privacy suit brought by Princess Caroline of Monaco.

As part of the balancing exercise, UK courts will rely heavily on the test of proportionality. Courts will have to ask whether the invasion of privacy is proportional to the purpose of the invasion.

Newspapers, such as the Mail on Sunday in the present case, often rely on the defence that it is in the public interest to report on a given matter. But not everything that interests the public is in the public interest, the von Hannover case found.

Information that is in the public interest is such that publication would be beneficial for the good of the public, not its titillation. It would include information necessary to prevent crime or to protect national security, for example.

According to Geoffrey Robertson, human rights barrister and expert in media law: “Reporting must reveal something of ‘legitimate’ public importance, rather than dispense gossip or trivia, no matter how much readers lap this up.”

Wider impact

The current hearings are just the first step in a process that will lead to a full trial later in the year. It is expected that the trial might well open up discussions on issues of the financing of the royals.

Ultimately, however, the case could affect the extent to which newspapers are free to report on the lives of celebrities.

According to Robertson, the case may go all the way to the Supreme Court. “That court’s final decision would be very influential, and if it decides against the Mail, that might deter free speech about celebrities – although that kind of speech is not always in the public interest.”

Another barrister specialising in media law, Heather Rogers, predicts a victory for the Sussexes would mean “more privacy and less openness”.

Journalist Oliver Duff explains the importance of the case: “Where the royals tread, far less salubrious characters will follow, as they seek to hide wrongdoing and corruption.”

Whether the personalities involved are salubrious or not, the outcome of the royals’ case will guide the press on where to draw the line between the public and the private.