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Will Meghan Markle Testify in Court?

Instyle logo Instyle 5 days ago Christopher Luu
Meghan Markle, Prince Harry smiling for the camera: JOHANNESBURG, SOUTH AFRICA - OCTOBER 02:  Prince Harry, Duke of Sussex and Meghan, Duchess of Sussex attend a Creative Industries and Business Reception on October 02, 2019 in Johannesburg, South Africa.  (Photo by Chris Jackson/Getty Images) © Chris Jackson/Getty Images JOHANNESBURG, SOUTH AFRICA - OCTOBER 02: Prince Harry, Duke of Sussex and Meghan, Duchess of Sussex attend a Creative Industries and Business Reception on October 02, 2019 in Johannesburg, South Africa. (Photo by Chris Jackson/Getty Images)

The Sussexes are taking the tabloids to court on the other side of Atlantic and things are about to get messy. According to ABC News, the Daily Mail published an interview with Thomas Markle, including a private letter penned by Meghan Markle, which warranted the duchess to file a suit against the paper for "breach of privacy and copyright infringement." Eventually, the lawsuit spread to include three different newspapers (the Daily Mail, the Sun and the Mirror) and law experts in the U.K. are all in a tough spot, since this is one of the only times that the royal family has filed lawsuits against so many tabloids at once.

"Between them, these newspaper groups own a huge percentage of the print titles across the country. For them to be taken on at the same time by members of the royal family does feel like we are in uncharted territory," ABC News contributor Victoria Murphy said.

Here's what you need to know now that the paperwork has been filed and more details are being revealed to the public. We've enlisted experts Dr. Paul Wragg, associate professor at the University of Leeds School of Law, and Professor Estelle Derclaye, professor of intellectual property law at the University of Nottingham School of Law, for insight into what could happen when the case reaches the High Court of England.

How strong are Harry and Meghan's cases?

Wragg: "I think they've got a good case, but I don't think they've got a great case. So, they're bringing in three claims. One's in something called misuse of private information, one is in data protection, and the other one is in copyright. And in a way, all three of them are linked, because all three provide exceptions that would allow a journalist a defense to say this is material is of public interest, this is the sort of material that we are entitled to discuss."

Derclaye: "I think their case is extremely strong in law, hence why they are pursuing it I think. There may be other reasons which are more personal which, of course, I do not know of."

Why did Meghan and Harry finally choose to take legal action?

Wragg: "I think we need to see this as the kind of the straw that broke the camel's back. This is an accumulation of hostile journalism that has, clearly, not just irritated the Sussexes, but genuinely upset. And there's an ongoing narrative that the British has not taken to Meghan Markle and is prying in a way that Harry is clearly upset about and clearly sees parallels with the way that his mother, Diana, was treated."

"The claim itself needs to be seen in that sort of wider context, where he's trying to set a marker, a line in the sand, to say, 'Enough is enough.' So even if they don't win this claim, in a way, just the fact of bringing it is of itself a signal, to say, 'Back off and leave her alone.'"

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What exactly is the Data Protection Act 2018, which Harry and Meghan claim the papers are breaching?

Wragg: "The law of privacy in this country is different from America, because the kind of newsworthy dimension that you could run in America doesn't work in quite the same way over here. Plus, also, the test is slightly different as well in America. As you know, it's got to be shown to be highly offensive to the reasonable person. That's not the standard over here."

Derclaye: "This act updates U.K. data protection law with the most current EU regulation, called the general data protection regulation (GDPR). This act protects a person's privacy. Private letters are covered by this act because the definition of personal data in the law is very broad. A person who uses such personal data without the person’s consent is liable and there are very few exceptions."

What challenges could the case face?

Wragg: "The Sun, yesterday, claiming that she invaded her own privacy by leaking the letter to friends. So this was written by someone called Emily Andrews, the third of October, so this adds an extra dimension. This is why I'm saying that her claim isn't nailed-on, because [...] I mean, this doesn't seal it in favor of the press, but it might weaken her claim if she has, in fact, disclosed this information to other people, disclose the letter to other people, by putting it out there into the public domain."

Derclaye: "As far as I understand it, the newspaper publishes extracts verbatim of the letter and such extracts are long enough to constitute copyright infringement. The newspaper has no defenses to show, as what is in the letter is not a current event, nor is it in the public interest to know about it."

How far will this go in court and could it be settled out of the legal system?

Wragg: "I suspect that Harry will want to take this to the courts and to get a decision in his favor. Because Harry is trying to send a message to the wider tabloid community, I can see this going to court rather than settlement. In other words, this isn't about money and it's not really about an apology from The Daily Mail. This is about sending this very clear message."

Derclaye: "It seems that both parties want to fight this in the courts so it may not settle. If I were the newspaper with the court precedents against me, I would probably settle but it all depends on their strategy, do they want the added publicity? Perhaps. Will the damages be a big deterrent? Perhaps not."

So, the royal family has been through this before?

Wragg: "There is a history of the royal family doing this. So, Prince Charles has done this on a couple of occasions, including with his diaries about the transfer of power in Hong Kong. He brought a privacy claim himself and succeeded. That was back in the early 2000s. So, there is a history of doing this."

Derclaye: "The same newspaper company fought a similar case and lost on similar grounds: His Royal Highness the Prince of Wales v Associated Newspapers Ltd."

Is there a precedent for this type of claim?

Derclaye: "Breach of confidence claims coupled with copyright claims are relatively common, especially from celebrities. There were similar claims by Michael Douglas and Catherine Zeta-Jones around unauthorized publication of their wedding photos (Douglas v Hello Magazine). Naomi Campbell sued a newspaper for publishing photos of her coming out of a Narcotics Anonymous meeting (Campbell v MGN) and the Prince of Wales case. In all three cases, the celebrities or royals won."

Will Meghan or Harry have to appear in court?

Wragg: "Yes, at the very least, she would have to submit a witness statement, but yeah, she would be expected to turn up in court, so that she could be cross-examined, and so that the judge can get a sense for herself, or himself, of the effect that this has had on her."

What about Thomas Markle?

Wragg: "He could be named in the action itself, he could be subject a kind of cease-and-desist from disseminating either this information, or future information."

"It's possible that it could be done simply through witness statements. I mean, I can't see how he's the star witness that the whole case is going to stand or fall upon. So, given the sensitivities involved, it might be possible for him to be excused, or otherwise just present his evidence on paper."

Derclaye: "She is not suing her father, just the newspaper, so he is not part of the proceedings as a defendant. He could, however, be called to be a witness, but again, that will very much depend on procedure."

Did Princess Diana take similar legal action?

Wragg: "No, she didn't. Unfortunately ... Well, so, tragically, she died before the privacy laws that we have today came into effect. It was because of the terrible treatment that Princess Diana suffered that the harassment clause came in, in the late '90s."

Will this change anything about how Meghan is covered in the press?

Derclaye: "I think a certain press is what it is in the U.K. Nothing, even the prospect of litigation, really stops them writing in a derogatory way about certain people they dislike. I don't think it will deter them, unless there are specific circumstances in which they obtained the letter dishonestly or stealing it and the damages are extremely high."

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