HM Insights

Privacy, Confidence and Copyright: Meghan Markle and you

Prince Harry and Meghan Markle's interview with Oprah Winfrey is likely to be the first piece of news to mount a sustained challenge to COVID-19 as the topic "on everyone's lips". 

The "no holds barred" interview, where "no topic was off limits", has divided the British population. In this interview, Ms Markle sought to set the record straight on a number of private and personal topics that had been the subject of intense press coverage while she and Harry remain part of the Royal Family.

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This was not the only recent activity by The Duchess of Sussex which explores the issues of privacy in her life. On 11 February 2021, she successfully sued Associated Newspapers Limited for misuse of private information and copyright infringement after the contents of a letter that she wrote to her father were shared by the Mail on Sunday and the MailOnline. An appeal by the newspapers has recently been refused.

Meghan Markle's claim

Ms Markle's legal team argued that publication of the letter was a misuse of her private information as the letter was about her private and family life, not her public profile or her work. Furthermore, as the letter was an "original literary work", it is subject to copyright which had been infringed by its unauthorised reproduction in the press.

The newspaper tried to justify its publication of the letter on the grounds that there is a legitimate public interest in the activities of the Royal family. They also argued that any right to privacy that may exist had been compromised by a number of factors, for example, by Ms Markle's knowledge of her father’s propensity to speak to the media about their relationship and the fact that publication of the letter was lawful in the US.

The judge did not accept the newspaper's defence. He held that there was no compelling reason for disclosure and that publication was both a misuse of private information and infringed the copyright in the letter.

How does this relate to ordinary people/businesses?

Although it is unlikely that the press would take any interest in correspondence among ordinary members of the public in the way they have with Ms Markle, the laws on privacy and confidence, interlinked with copyright, play a part in our everyday lives.

Privacy

A recent Scottish case confirmed that a common law right of privacy exists under Scots law, in line with a fundamental human right to the protection of family and private life. The case was concerned with whether police officers exchanging WhatsApp messages that fell below professional standards had a reasonable expectation of privacy in those messages. The judge held that they did not, by virtue of the position of police officers and the nature of the WhatsApp group. The judge did though suggest that ordinary members of the public may have a legitimate expectation of privacy in their communications. This means that there would be a potential breach of privacy if those messages were shared more widely. This position has not, however, been tested, as this part of the case was not subject to an appeal.

Confidence

In Scotland, there is also a common law duty of confidence that can be enforced between individuals.

Someone can be in breach of confidence if (i) they were to disclose information that is not already in the public domain but has the necessary "quality" of being confidential, (ii) the circumstances by which that information was initially imparted to someone imported an obligation of confidence to that person  (ie someone told someone else something that was meant to be private and not told to anyone else), and (iii) the information is used in an unauthorised way to cause detriment to the person who wished the information to remain confidential.

An individual can bring a court action seeking interim interdict (injunctive relief) for breach of confidence to prevent disclosure of confidential information. That individual can also seek damages or an account of profits if there is some form of monetary loss to that person, or if that person has suffered injury to feelings.

Copyright

With respect to copyright infringement, the law in Scotland is similar to that in the rest of the UK. Any original written work is subject to copyright held by the author of the work. The term "work" can be widely construed and extends to written correspondence in the same way as it does to, for example, a book manuscript or song lyrics. Those who, without the consent of the copyright owner, reproduce,  copy or issue to the public, copies of the work or a “substantial part” of the work, infringe the copyright, unless they can establish a defence.

Whilst there are exceptions to the rule (eg, works created during the course of employment), and  although you may not think it, you probably hold the copyright to many "original literary works", such as correspondence. The principles of copyright apply equally to communications written on paper or electronically and so extend to letters, emails or private messaging apps.

There are also many other relevant considerations before making a claim for copyright infringement or breach of privacy or confidence. This includes the extent of the breach and the losses that flow from it, as well as any potential defences that may have justified the disclosure.

Get in touch

Please do not hesitate to contact Graham for advice or assistance with breach of privacy or confidence claims or copyright infringement.