The Mail On Sunday must publish a front-page statement about Meghan Markle’s victory in her copyright claim against the newspaper over the publication of a “personal and private” letter to her estranged father, the High Court has ruled.
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Associated Newspapers Limited (ANL) – the publisher of the Mail On Sunday and MailOnline – has also been ordered to print a notice on page three of the paper stating it “infringed her copyright” by publishing parts of the letter sent to Thomas Markle.
In a ruling on 5 March, lord justice Warby also granted Markle a declaration that ANL “misused her private information and infringed her copyright”. The duchess, 39, sued ANL over a series of articles which reproduced parts of a “heartfelt” letter to Mr Markle, 76, in August 2018.
She claimed the five articles published in February 2019 involved a misuse of her private information, breached her copyright, and breached the Data Protection Act. Last month, Markle was granted summary judgment in relation to her privacy claim, meaning she won that part of the case without having to go to trial, as well as most of her copyright claim.
At a remote hearing this week, ANL’s lawyers applied for permission to appeal against that ruling on 10 grounds. Warby refused permission to appeal, saying it had “no real prospect” of success.
In his ruling, Warby explained he “did not consider that there is any real prospect that the Court of Appeal would reach a different conclusion as to the outcome of the claim for misuse of private information, or as to the issues I decided in the copyright claim”.
The judge said he would order ANL to publish a notice about Markle’s victory as it would have “genuine utility”.
The defendant devoted a very considerable amount of space to the infringing articles, which it continued to publish for over two years. It has devoted a very considerable number of further column inches, and many hundreds if not thousands of words, to coverage of earlier stages of this litigation and commentary upon them.
The wording sought is modest by comparison, and factual in nature. But I am not persuaded of the case for prolonged publication.
The judge ordered that the Mail On Sunday must print “on a single occasion a statement on the front page”, which refers readers to a further statement on page three of the newspaper.
The statement will read:
The court has given judgment for the Duchess of Sussex on her claim for copyright infringement.
The court found that Associated Newspapers infringed her copyright by publishing extracts of her handwritten letter to her father in The Mail On Sunday and in MailOnline.
There will be a trial of the remedies to which the duchess is entitled, at which the court will decide whether the duchess is the exclusive owner of copyright in all parts of the letter, or whether any other person owns a share.
Warby also ordered ANL to publish the statement on MailOnline “for a period of one week” with a hyperlink to his full judgment.
The judge added:
In my judgment, these are measured incursions into the defendant’s freedom to decide what it publishes and does not publish, that are justified in pursuit of the legitimate aim I have identified, and proportionate to that aim.
They will involve little if any additional expense, and certainly nothing approaching the scale of the expense that has been lavished on this litigation.
Warby said there should be a further hearing “to determine the remaining issues of copyright ownership, the profits to which the claimant is entitled for the defendant’s acts of infringement, and what order should be made for payment of the sum found due on taking such an account”.
He said this hearing, which may take place in October, “would also determine, to the extent these issues remain live, what if any financial remedies should be granted to the claimant in respect of her claim for misuse of private information and the data protection claim”.
A preliminary hearing to decide “what form of financial remedy for misuse of private information may be pursued by the claimant”, how to deal with “the remaining issues in the copyright claim”, and “the further conduct of the data protection claim” will be heard in April or May.
In the ruling in February, the judge said publication of Markle’s letter to her father was “manifestly excessive and hence unlawful”. He added:
It was, in short, a personal and private letter. The majority of what was published was about the claimant’s own behaviour, her feelings of anguish about her father’s behaviour, as she saw it, and the resulting rift between them.
These are inherently private and personal matters.
Warby said “the only tenable justification for any such interference was to correct some inaccuracies about the letter”, contained in an article in People magazine, published just days before ANL’s five articles, which featured an interview with five friends of Markle.
The judge added:
The inescapable conclusion is that, save to the very limited extent I have identified, the disclosures made were not a necessary or proportionate means of serving that purpose.
For the most part they did not serve that purpose at all. Taken as a whole the disclosures were manifestly excessive and hence unlawful.
He also said ANL’s arguments on ownership of the copyright of the letter “seem to me to occupy the shadowland between improbability and unreality”.
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