Fear and loathing on Fleet street – what the privacy win for Meghan Markle means for her and Harry, and for you

24 March 2021 | Applicable law: England and Wales

Ding ding. Seconds out. Meghan Markle is awarded the championship belt. She has won her latest privacy bout against the heavy-weights Mail On Sunday and Mail Online over the unauthorised publication of her letter to her father. Taking one mighty summary judgment blow to the head(line), the terrible tabloid crashes to the canvas – if not out cold then certainly seeing stars.

Depending on your perspective, this was a major victory for privacy-protecting plaintiffs. Or the end of free speech as we know it. Except it isn’t really either actually. And given that the defeated defendants are anything but downbeat and have sought to appeal the ref’s decision, there may well be a rematch.

Let’s get legal for a minute. This wasn’t a win at an all-singing, all-dancing “trial of the decade”. That accolade will now have to remain – at least so far – with last year’s winner, the Jonny and Amber show featuring a spectacular fall from grace for the scissor-handed, chocolate loving, tea-party hosting, pirate Mr Depp over allegations published by News Group Newspapers in its imprint The Sun that he beat his wife. Although he isn’t taking that knock-down lying down, and he too has sought permission to appeal.

But back to Meghan, by avoiding a trial through her summary judgment win, she was spared the necessary evils of lengthy and intrusive cross examination, hideous headlines and detailed daily reports that both Mr and the former Mrs. Depp had to endure.

Importantly then, what does Meghan’s win mean for you?

Getting down to brass tacks – and this is what has got certain elements of the media hot under the collar – is that Meghan – Duchess, actress, married into royalty – can still have a reasonable expectation of privacy. And if she can have one, we can have one too. When she announced in her victory speech that “we” have won, she wasn’t mis-using the “Royal We” reserved for Her Majesty the Queen. “We have all won” can be a reminder to us all that we are entitled to our privacy, and a reminder to the media to respect that.

According to the High Court judge Mr Justice Warby, as a public figure, “She [Meghan] must accept a degree of intrusion that others would not have to bear. But it has long been established that a public figure does not, by joining that select group, give up her right to a private life, or open up every aspect of her private and family life or correspondence to examination in the press.” Indeed, even one “who actively seeks the limelight” does not thereby necessarily have a reduced expectation of privacy. They can applaud publicity “so long as it is favourable” to them, but still abhor publicity that is unjustifiably intrusive.

And I say, rightly so.

The last time I looked there was no law against Spanx; Grecian 2,000 is not a controlled substance; Mr Kipling might make exceedingly good cakes, that’s his spin on things and he’s perfectly entitled to say so. The point is, it’s OK for us to want to portray ourselves in the best possible light (and ring lights are all the rage today to enhance our endless Zoom calls so that we can all be ready for our close-up now, Mr DeMille). We can put our best foot, our best face, our best front forward without giving up our private life in the process.

Certain elements of the media will argue that the judgment will lead to a wholescale rush to whitewash. I think that’s hogwash. For centuries, the press has acted as the eyes and ears of the public, and largely done so well. But unjustifiably intrusive publications are not in the public interest. And what’s more, what the media says doesn’t have to be the only voice we hear. We can be a little peeved if media organisations, for their own commercial ends, portray us in a manner with which we disagree, and we are entitled to tell it how we see it.

Let’s be clear, this judgment isn’t new law. It’s a very high profile reaffirmation that, celebrity or civilian (as Liz Hurley defines and divides us), wizard or muggle, private person or public figure, control of our image does not solely rest in the hands of the media. Meghan’s success reminds us that we can wrest some back. Neither is the judgment about depriving the newspaper-reading public of important news and genuine general interest debates. Rather, the wilder excesses of Fleet Street are reminded that proportionality is the name of the game, and that while with their deep pockets and from their lofty soapboxes they have historically held all the power, prince or pauper we too can have some control over what is said about us.

And aye, there’s the rub. Because it appears that Meghan Markle has learnt that lesson very quickly indeed. Disgusted that his recently widowed mother had fallen into the arms of her dead husband’s brother, Hamlet laments: That it should come to this, not two months dead, nay not so much, not two… Bastardising that phrase, the media might argue: That it should come to this, not two days said… referring to Meghan’s victory speech about a legal win very important for privacy, followed hard upon its heals with her and hubby Harry’s very public announcement of the future pitter patter of more royal feet. And there was more publicity (not privacy) and yet more control exerted over their own image as she and Harry sat down for a cozy little fireside chat with Oprah Winfrey… and her 17.1 million viewers.

The optics of this are not sensitive. But against a foe who has brought her “very real sadness” Meghan isn’t interested in being sensitive. She’s likely interested in making a point. By proudly pronouncing to the world that they are now happily pregnant with baby two, they are loudly broadcasting to the media that if they want to secure a win for privacy one day, and then trumpet baby news the next, then with this privacy judgment firmly under her now expanding belt, that is precisely what they shall do. And despite concerns in many areas that they have done so, if they want to rectify perceived wrongs, tell their own story, and indeed, wash the royal family’s linen in public, then Meghan and Harry are quite prepared to do so.

The official photograph accompanying the pregnancy announcement was an arty black and white pastiche of the final scene from the Rom Com Notting Hill. When Julia Roberts’ character stood in front of that of Hugh Grant, she was just a girl, standing in front of a boy, asking him to love her. In the legal drama brought over the little issue of her private letter to her Pa, Meghan was just a girl – well, a celebrity, actress, Duchess and mother to the seventh in line to the British throne – standing in front of a boy – actually a fairly mature, media-law-savvy judge – asking him to love her legal arguments. And so he did.

Our takeaways from this are that we are entitled to our cake and to eat it. We can protect our privacy and still talk about some of those private events from time to time and in some circumstances. We can be high profile, but have a low profile private life. And while the tabloids may appear omnipotent, we too have wrest some power back over our own lives. For Meghan and Harry, with an appeal of the legal action in the tabloid’s sights, with the fallout from the Oprah Show leaving many reeling, and with the couple’s feet now firmly planted in LaLa Land with Netflix and other media deals – as well as a new baby – on the way, it’s unlikely that the prying gaze of their tabloid nemesis will be long averted. And thus – although they are nesting in LA and not Las Vegas – despite the legal win the couple’s relationship with the British tabloids will probably long remain one of fear and loathing.

This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.


Related experience

As a full-service law firm, we are able to provide advice and information about a wide range of other issues. Here are some related areas.

Join the club

We have lots more news and information that you'll find informative and useful. Let us know what you're interested in and we'll keep you up to date on the issues that matter to you.