“One day’s coverage is no longer tomorrow’s chip paper” - the Duchess of Sussex has announced possible legal action against the Mail on Sunday. Cameron Sullivan looks at the copyright aspects of the case.
In what some commentators have dubbed ‘the privacy case of the century’ (if it reaches trial), Meghan Markle is suing the Mail on Sunday after it published a private hand-written letter she wrote to her father.
Meghan’s lawyers said that they have taken legal action over what they called an “intrusive and unlawful publication of a private letter written by the Duchess of Sussex, which is part of a campaign by this media group to publish false and deliberately derogatory stories about her…”. Many of these stories were provided to the media by Meghan’s estranged father.
Interestingly, as no one is claiming that the letter is inaccurate, Meghan is not suing the newspaper for the usual favourite, defamation. Instead, she’s choosing to sue over misuse of private information, infringement of copyright and breach of the Data Protection Act 2018.
The copyright aspects of the case are based on the principle that the author of a letter retains ownership of its content, although the actual physical letter belongs to the recipient. Copyright, in its simplest form, means that as soon as you create something that is the product of original thought, whether it is a letter, a sound recording or piece of art, you will own copyright in it. This right comes with certain benefits, such as the right to prevent anyone else from copying, or issuing that protected work to the public. In this case, Meghan is likely to argue that her consent was required before the press, or anyone else, uses the content of her letter.
If the Mail on Sunday loses the case, it could have wider implications for all journalists who want to report on leaked documents.
There are exceptions to copyright infringement – for example, copyright works can be used without the owner’s consent for the purposes of criticism, review or quotation. However, these exceptions require that the material used was already available to the public, so unless the Mail on Sunday can demonstrate that extracts of the letter were already public knowledge, these potential defences may not be available.
Another exception is that of reporting current events, but this requires that the use of the material is fair, and for it to be fair there must be a legitimate and continuing public interest.
Cases such as this often come down to the balancing act of privacy vs. public interest.