A Media Lawyer's Perspective: The Sussexes vs the tabloids

The Sussexes have departed from established royal practices in a number of ways. One has been to take on the popular elements of British press. They are taking a huge gamble in doing so, as the print media and some tame legal commentators have told us since legal proceedings were issued.

When I began my career as a media lawyer nearly 30 years ago it was accepted that the Royal Family would always present a silent stiff upper lip in the face of press abuse, and editorial decisions to wrong them were made in that context. That has gradually changed over the years, prompted by such incidents as one of Piers Morgan’s Mirror journalists finding his way into the royal apartments of Buckingham Palace.

The change to a more proactive stance towards the tabloid press has been gradual. Around 20 years ago I spent most of a morning in the Buckingham Palace office of one of the younger members of the Royal family advising a proactive response to the tabloid abuse in question, but the press officer was against it. The result was that the abuse continued unabated.

The Duke of Sussex has his personal reasons to loathe the tabloid press, whose insatiable appetite for pictures of/stories about his mother lead to her untimely death in a road accident while being pursued by paparazzi. He will also know that much that is written in the tabloid press about him and his family is commercially-driven and/or poisonous fiction. I will be in a small minority of content lawyers because I once advised a newspaper client not to run an intrusive story about his parents for the sole reason that it was untrue.

The Duchess of Sussex’s privacy claim against the Mail on Sunday has become the primary battle ground in the contest that she and her husband have entered into against the popular press. They are using my old law firm (Schillings) because of its fearsome reputation as a battering ram for celebrities against the tabloids. Schillings also represented Johnny Depp in his libel claim against the Sun. The paper is using market-leading defendant firm Reynolds Porter Chamberlain, which is less well known outside the media law world, but which also defended the Depp claim. Both QC’s are top-rank, so this battle is also being fought by titans of the legal world.

There are two parts to Megan Markle’s claim concerning the publishing by the Mail on Sunday of a letter that she wrote to her father. One is a breach of privacy claim concerning the content of the letter. The other is breach of copyright claim; that as the author of the letter she owned the copyright to it which the paper breached by reproducing it in its news pages.

The paper defends its actions firstly on a “public interest” basis. On the privacy claim, it says that there was a legitimate public interest in the content of the letter which it says justified the privacy and copyright infractions. As to the privacy claim, the paper also asserts that the Duchess of Sussex has “invaded her own privacy” by using friends to get her story out into the media.

Most recently the paper has been given permission by a judge to pray in aid the “Finding Freedom” book about the Sussex’s, which the paper says she contributed to one way or another. Megan Markel and the book’s author deny this, but common tabloid tactics when they have no viable defence is to include both grinding attrition and the weaponising of the kitchen sink.

The general consensus amongst media lawyers is that the Duchess of Sussex will win the trial which is listed for January next year. For my part, as someone who has dealt at first hand with the hypocrisy, hubris and dishonesty of this element of our national press, I wish them well.

Article written by Jonathan Coad, Coad Law