The American Actress, the English Duchess, and the Privacy Litigation by Amber Melville-Brown

The American Actress, the English Duchess, and the Privacy Litigation By Amber Melville-Brown First Brexit, Now Megzit... trip back to the motherland In a move more resonant with players of the TV were dashed with the event show “Survival” than with members of the British royal postponed amid the CO- family, the Duke and Duchess of Sussex—Prince Harry VID-19 coronavirus pan- and Meghan Markle, the Duchess of Sussex—blindsided demic, even ironically as his senior royals with a unilateral announcement that they father HRH Prince Charles intended to “carve out a progressive new role”1 within the himself actually succumbed royal family, and by the surprise launch of their own and tested positive for the independent website. The relatively sparsely populated virus. www.sussexroyal.com—including a personal statement The couple’s new social about their recently launched media litigation, reference media sites also suffered a to the Royal Rota media system that they are rejecting, blow; the new relationship and to the Information Commissioner’s Office public carved out in negotiations interest test under the Freedom of Information Act—sug- between the royal fam- gests strongly that it is the couple’s tense relationship ily and the couple as they venture out on their own saw with the media that has led them to seek a new “working them having to abandon use of the “Sussex Royal” brand model” in 2020. with which they heralded the new them, before the ink on Indeed, if this announcement was intended to foster the new branding was really even dry. a new and better relationship with the press, it backfired. Then, and again with an ironic family twist given Further, if the move to Canada —in part at least—to seek it was made on the eve of his Grandmother Her Maj- a “more peaceful life,” as Harry offered up to the public, esty The Queen’s birthday, Harry and Meghan made a then that too may have backfired. Upon the announce- spectacular—some believe spectacularly foolish—move. ment of resignation, both media and public backlashes They communicated to the British tabloid press that they ensued. While Meghan returned to Canada—leaving the would no longer… err, communicate with the British papers to be able to recycle the rather tired “Brexit” into tabloid press. The very public attack on the newspapers a much more fun “Megzit”—it left the Duke of Sussex to confirmed that henceforth, “there will be no corrobora- enter negotiations and to seek a compromise with “The tion and zero engagement.” It seeks to protect the couple Firm.” from criticism, going on that: “This policy is not about In this fast-moving story developments will inevi- avoiding criticism. It’s not about shutting down public tably ensue in the short time frame between “file” and conversation or censoring accurate reporting. Media have “publish” of this article. However, Harry and Meghan ap- every right to report on and indeed have an opinion on pear to have come out of the deal talks with less than they the Duke and Duchess of Sussex. But it can’t be based on had hoped for in terms of professional roles and responsi- a lie.” bilities, and less than they anticipated in terms of privacy Truth or lies aside, by penning this line, it is inevitable 2 protection and that desired “peaceful life.” that the couple have drawn a line in the sand. While it As this article went to press, developments came may not be about avoiding criticism, from the tabloid thick and fast. For example, the couple surprisingly quarters for sure, but more widely also, criticism is what swapped the calm of Canada for the glitz of Los Angeles. their actions have yielded. Whereas privacy might have been in shorter supply than The timing for this breakup letter perhaps explains Harry and Meghan would have hoped for in the Great this move—it was sent at the beginning of the week that White North, it is surely rarely on the menu in the City of Meghan’s privacy claim against Associated Newspapers Angels. Limited, the publishers of the Mail and the Mail on Sun- However, a move to California was not an ultimate day, kicked off. The physical doors of the splendid Royal severing of links for Harry with his homeland. Indeed, Courts of Justice on The Strand, London, may be closed he was due to return to Blighty in April 2020 to attend amid the coronavirus pandemic, but the wonders of mod- the London Marathon, as patron of the London Marathon ern technology allowed the presiding judge, Mr. Justice Charitable Trust. Yet even royals have been affected by Warby, himself a specialist media judge and barrister the 2020 COVID-19 coronavirus; and Harry’s plans for a before that, to hear the case remotely at a virtual hearing, NYSBA Entertainment, Arts and Sports Law Journal | Spring 2020 | Vol. 31 | No. 2 reportedly with Meghan and Harry listening in from Los efforts—and neither their move to glamour-town, West Angeles. Coast America—will make them any less interesting to the public, given its demand for insights into the monar- This virtual hearing was an application (motion) by chy and all its machinations, or of any less public interest the newspaper to strike out two elements of the plain- concerning as it does the immediate future of the British tiff’s claim, one of “dishonesty” by the newspaper in its royal family. The young family will continue to be a valu- alleged editing of Meghan’s letter to her father, the subject able commodity to the media organizations that serve matter of her claim, and second purported reliance for those dual interests, irrespective of where they reside. her claim in aggravated damages, on a number of other articles by the newspaper alleged to indicate an agenda Despite their move to Los Angeles, it is worth consid- against her. Both elements of the motion were defended ering why they chose Canada as a potential safe haven. as irrelevant. The degree of protection they considered might be af- forded them in British Columbia remains unclear. Privacy Judgment was handily handed down on the day that laws in Canada are more protective than they are in the the presses rolled for this article. It found the newspaper U.S., but less developed than those of England and Wales. in the driving seat, while the Duchess of Sussex—accord- What Canada does offer, however, is seemingly a differ- ing to some commentators—was left with a legal action ent attitude. If the scoop-chasing, tenacious, and intrusive akin to “a train ploughing into a petrol tanker on a level tabloids are the “feral beast” of the press world, and the crossing... a complete disaster.”3 Mr. Justice Warby con- American newspapers are the investigative newshounds, firmed the win for the defendant in his judgment, record- then the Canadian press may be the well-bred, better ing that: “I have struck out all the passages attacked in the behaved service dogs of the nation. application notice. Some of the allegations are struck out as irrelevant to the purpose for which they are pleaded. Canada then, with what may be seen as one of the Some are struck out on the further or alternative ground world’s most polite press, will not have had to address that they are inadequately detailed. I have also acted so its legal mind as much as its British cousin to curbing the as to confine the case to what is reasonably necessary and wilder excesses of the media, where those excesses are proportionate for the purpose of doing justice between fewer. Yet with the couple’s albeit short-lived move to these parties.”4 Canadian shores encouraging the arrival of some foreign paparazzi tourists armed with long lenses, seeking to col- Perhaps understandably, given the media’s hound- lect photo trophies to send to the publishing houses back ing of his mother Princess Diana, and the paparazzi’s home in Blighty, that might significantly have changed perceived role in her death, Harry’s hatred of the press the Canadian ways. and in particular the tabloids seems to have sat festering as a poisonous weight in his stomach over the intervening Whether the couple—no strangers to the camera and years. His view of its attitude and treatment of his wife to public life—will find privacy succor on any foreign has seemingly turned that poison into a hatred that has shore seems unlikely. However, little Archie may be a bubbled up and exploded, first with his and his wife’s different story. When the author JK Rowling took ac- separate litigation against various representatives of the tion in England over the unauthorized publication of British tabloid press, and now in the establishing of new photos of her toddler son in a pushchair on the streets of battle lines with the media. Edinburgh,5 the Court of Appeal held in 2008 that: “The law should indeed protect children from intrusive media This latest defeat for Meghan will do nothing to attention,” and that “If a child of parents who are not in improve relationships between the parties, with commen- the public eye could reasonably expect not to have photo- tators suggesting that the couple should settle the action. graphs of him published in the media, so too should the Of course, Meghan and Harry may both remain confident child of a famous parent.” that they will ultimately win their actions, and be unwill- ing to settle their claims even if the newspapers were will- Most modern legal systems will seek to protect the ing to throw in the towel.

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