Here’s a better explanation for what’s happening in Duchess Meghan’s lawsuit

Meghan Duchess of Sussex and Prince Harry Duke of Sussex pictured at Field of Remembrance in London

I got my law degree from the University of The Good Wife, which means that I only really have a vague understanding of American criminal and civil law. My understanding of British law is practically nonexistent. Personally, I think the British laws governing the media and those civil lawsuits brought against print media are meant to be murky. That’s how the British tabloid media continues to gleefully smear people with few consequences, even after the Leveson Inquiry. All of which to say, I’m still trying to understand what Friday’s ruling means for the Duchess of Sussex’s lawsuit against the Daily Mail/Mail on Sunday. Meghan “lost” the first round of what will be a longer war – the judge told her side that they couldn’t make certain arguments, but that the lawsuit could of course proceed because the crux of the case is solid. As a gauche American, I actually found People Magazine’s explainer really helpful:

Meghan Markle will “continue to move forward” with her case against Associated Newspapers — publisher of the Daily Mail and Mail on Sunday — after the judge ruled against parts of her claim that were presented in a pre-trial hearing last week. In a written judgment made public on Friday, the judge, Justice Warby, agreed to “strike out” parts of Meghan’s claim, which were put forward to the High Court in London on April 24.

This means that when the case goes to trial, the court will not be asked to rule on whether the Mail on Sunday acted dishonestly, pursued a negative agenda against Meghan or deliberately stirred up trouble between the Duchess of Sussex and her father, Thomas Markle, 75. During the pre-trial hearing, the newspaper said that Meghan’s team didn’t have enough proof of dishonesty – mainly because it’s a state of mind. Instead, the legal case will now focus purely on whether the Mail on Sunday infringed Meghan’s privacy and U.K. laws surrounding copyright and data protection by printing excerpts of a handwritten letter she sent to her dad in August 2018.

“I do not consider the allegations in question go to the ‘heart’ of the case, which at its core concerns the publication of five articles disclosing the words of, and information drawn from, the letter written by the claimant to her father in August in 2018,” Justice Warby wrote in the summary of his findings.

Friday’s legal ruling is the first stage in the lawsuit, which is expected to go to a full trial in late 2020 or early 2021. In response to the ruling, Meghan’s legal team made it clear that despite the setback they would “continue to move forward” with her case, which is based around five articles published by the Mail on Sunday and MailOnline in February 2019.

“Today’s ruling makes very clear that the core elements of this case do not change and will continue to move forward,” a spokesperson for Schillings law firm says in a release. “The Duchess’ rights were violated; the legal boundaries around privacy were crossed. As part of this process, the extremes to which the Mail on Sunday used distortive, manipulative, and dishonest tactics to target The Duchess of Sussex have been put on full display.”

While Meghan will not dispute the ruling, her legal team added that they were “surprised” that Warby ruled that dishonest behavior was not “relevant” to the case. Adds the spokesperson from Schillings: “We feel honesty and integrity are at the core of what matters; or as it relates to the Mail on Sunday and Associated Newspapers, their lack thereof. Nonetheless, we respect the Judge’s decision as the strong case against Associated will continue to focus on the issue of a private, intimate and hand-written letter from a daughter to her father that was published by the Mail on Sunday. This gross violation of any person’s right to privacy is obvious and unlawful, and the Mail on Sunday should be held to account for their actions.”

[From People]

Ah. So the judge basically told Meghan’s side that there’s no way to prove that the Mail was consciously choosing to be dishonest, whether the Mail’s editors and journalists had dishonesty in their hearts. The judge also agreed with the Mail’s argument that at this point, no one can prove that the Mail pursued an agenda to destroy Meghan’s relationship with Thomas Markle. Which I also agree with? The argument that Toxic Tom wouldn’t have sold out his daughter unless he was manipulated by dishonest journalists is an argument which robs Toxic Tom of his toxic agency. I don’t doubt that Thomas has been manipulated and deceived about many things. But he also chose to sell out his daughter constantly.

The Daily Mail ran their take on the judge’s ruling and it was just as ridiculous and hyperbolic as you would expect. They got their own lawyers to insult Meghan, saying: “For Meghan this judgment is like a train ploughing into a petrol tanker on a level crossing. It is a complete disaster. She’s been humiliated today. Every complaint by Associated Newspapers has been completely and utterly vindicated by the judge.” LMAO. A boulder of salt.

Meghan Markle and Abigail Spencer are seen leaving "Cafe Boulud" on the Upper East Side

Photos courtesy of Backgrid.

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38 Responses to “Here’s a better explanation for what’s happening in Duchess Meghan’s lawsuit”

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  1. Ruby_Woo says:

    “Every complaint by Associated Newspapers has been completely and utterly vindicated by the judge.” That’s a straight up lie.

    • BayTampaBay says:

      More Daily Fail Fanfiction to rile up the Daily Fail haters and generate clicks.

  2. Zoya says:

    Oh God..that statement from DM lawyer couldn’t have been more cringeworthy *big fat roll eyes*

    I hope Meghan wins and man…she she has some nerves of steel! To have put up with all the crap thrown at her, by her own father no less, must..should have really messed her up. But it didn’t. And that’s all you need to know about the kind of person she is.

    • Bettyrose says:

      It’s all cringy. When is the legal standard of what someone has in their heart ever provable? I guess if someone writes a manifesto prior their crime. Damn the DM for not writing a manifesto pronouncing their intent!

  3. local russian hill says:

    very informative. thank you for explaining. i feel for meghan and it will be interesting to see how the case proceeds. in a related note, i’ve stopped watching cable news and i’ve stopped my cable subscription period. i refuse to support sensationalistic journalism by the big corporate networks. i did this a few years ago and went years without cable. it’s a more peaceful way to live; listening to national public radio (npr) and reading the news online from reputable websites such as the new york times while avoiding the daily mail. the daily mail’s levels of toxicity have gotten to be ridiculously high. it’s not good to ingest. it also helps immensely to have been off social media for six years.

    • DarlingDiana says:

      I did the same with cable news. Their is no “news” there. There are agendas, ratings grabs, and opinion pieces based on faulty or non-existent information. I hope they all go off the air when more people cut the cord. I don’t need to be told how to think with “analysis”.
      I think it is beyond obvious how the members of the UK press being sued are going to “report” on Meghan. I think that the American entertainment sites, like E news etc., will go in the opposite direction.

    • Ruby_Woo says:

      Good for you! I’ve tried to make a real conscious effort about which media outlets I focus on. I’m trying to support on more grassroots / independent news outlets, not ones that are owned by billionaires who have their own axes to grind and write or report obscene things just for ratings/ clicks. I live in the UK and am just sickened by our media.

  4. Ladyjax says:

    My take is that those arguments that were struck out just weren’t presented properly; that there was too much extraneous conjecture and not enough juice for them to be pursued or “stick” legally, and that they weren’t fully in alignment with the core legal issues of privacy violation and libel/slander. So basically Meghan’s lawyer’s just need to streamline the case. Big whoop.

    The daily fail floundering and calling this a massive victory is very telling. They doth gloat too much. They’re trying to control the narrative, but I think some of them may be shaking in their boots a little that the case is still proceeding.

    • songbirds_thrive says:

      What people fail to understand is that this was a preliminary hearing, and that some of the claims brought forth by Meghan’s attorneys are part of legal strategy. In addition, this hearing allowed M&H to reveal the texts by her and Harry to Thomas Markle Sr, which show that the DF saying Meghan hadn’t contacted her father nor sought to protect him in the lead-up to the royal wedding, are false. There may not be another way going forward for those texts to have been revealed in support of Meghan’s contention that the DF and Mail Online are operating dishonestly. But now, the texts are part of the public record.

      As well, Judge Warby’s ruling also made statements allowing for Meghan and her attorneys to bring back in some of the stricken claims against the DF, if the claims can be presented and supported within a legal context found to be relevant to the case.

  5. Priscila says:

    Why they want to humiliate her is the first question to be asked.

  6. Mumbles says:

    The New York Times had an article on this lawsuit on Friday. The only claim left is whether the paper violated Meghan’s privacy.

    • Becks1 says:

      That was always the main claim. She can add these other claims back in later if she wants, the judge left the door open for that, there just has be a stronger legal basis for them, which there might be later.

  7. Belli says:

    If that’s the statement from the Mail’s lawyers, it no longer surprises me that a big part of their case hinges on Meghan’s handwriting being too nice.

    • L4frimaire says:

      @belli, good point. This makes me think that if that part of Meghan’s claim was struck, then parts of the Mails can be as well, especially if they say things like her handwriting or talking to her friends shows she wanted the letter published. How could they know what was her intent or “ in her heart” based on that?

      • Bucky says:

        Yeah, that’s impossible. So much of the communication is clearly “for the record” which is something any sensible person would do if they know or suspect that the person they are writing to might leak the communication. That’s clear. But wanting it to be published or not wanting it to be published is probably not possible to prove.

  8. C-Shell says:

    The other part of this decision is that the judge invited Meghan’s counsel to resubmit some of the stricken elements under a clearer legal theory, so, no, Daily Heil, this was neither a humiliation for Meghan nor a vindication of the rag.

    • DarlingDiana says:

      Win or lose the privacy suit, I hope she doesn’t file new suits. They are likely unprovable as described here but, more importantly, it doesn’t really matter anymore. The Sussexs have a new life and new (to Harry) country to get on with. What is ahead is more relevant than what is behind.

      • Becks1 says:

        No, it wouldn’t be filing a new suit. It would just be re-adding some of these claims. Basically the judge was saying, “there may be something there, but you have to do a better job showing me.”

      • DarlingDiana says:

        If so, I misspoke but with no ill intent. My point is that leaving Thomas Markle and the tabloids in the rearview mirror and focusing on their new life seems, to me, to be the best option both for their mental health and p.r. purposes. of course, I’m not them and they may have their reasons to pursue these issues. I just think that with things standing as reported that “state of mind” isn’t provable and causing trouble between Meghan and her father is, as stated by this site, not something that Thomas needs help with.
        I’m not a lawyer and while I understand quite a bit of American law, I am in the dark about UK standards and practices. To me, it seems like Meghan wants/wanted to file something similar to a defamation of character suit. I don’t know if those exist in the UK or, even if they do, to what extent a public person is considered a fair target.

      • Becks1 says:

        @DD I didn’t think you had ill intent, I just wanted to clarify 🙂

        I see your point and honestly my take on it is that she wants to follow through with this suit but it was filed when they were still FT working royals and my guess is that she thought it would cause the tabloids to be more careful in their “reporting” (which may have kept them in the UK) but that obviously isn’t what happened. I’m not sure she would sue at this point in time for the same thing.

      • C-Shell says:

        The bits quoted of the law firm’s spokesperson doesn’t make it sound like they would add those claims back to their base copyright/privacy claim, even though the judge left that door open. I agree that H&M’s circumstances have changed much more quickly and drastically than when they brought their lawsuits last year, in ways they didn’t plan or foresee, so that has to enter their calculation. The parts that were stricken, and the texts with Toxic Tom, were made part of the record and that accomplished quite a lot. At this point, everything will move more efficiently if they just focus on the core claim.

  9. ZanB says:

    The Sussexes are suing corporations. Corporations, under UK common law, cannot form an intention. Only the directing mind (i.e. directors) of a corporations can from an intention under UK law (see Tesco Supermarkets Ltd v Nattrass [1972] AC 153). This approach has been criticized because it restricts corporate liability to the acts of directors and a few high-level managers. Also, this approach unfairly favours larger corporations because they will escape criminal liability for the acts of all the employees who manage the day-to-day activities of the corporations.

    Thus, the UK courts are rightfully limiting the Sussexes’ liability lawsuit to traditional corporate torts such as negligence, recklessness, mistake, omission, strict liability, damages, etc. (and possibly pseudo-crimes that may be also pursued in civil courts such as corporate theft, corporate espionage, violation of agreements, misappropriation, blackmail, public mischief, bribe, forgery, perjury, and the like).

    If the Sussexes were to specifically name a HUMAN in their lawsuit, then the element of intention (mens rea) could be brought back into this civil lawsuit.

    • Mary says:

      Piss Morgan?!

    • DarlingDiana says:

      Ah, this makes sense! So, Meghan could sue Piers Morgan for a series of stories meant to frame her in a poor light because as an individual Morgan can form that intent.
      I still hope that she doesn’t do it.

    • LeonsMomma says:

      Not sure if Slack is overseas — or what kind of interoffice communication they use. Anyhow, there could be daming evidence on those modes of communication, if not erased (though who knows, there may be a server with all of it.) That way, individuals could be sued.

  10. Sof says:

    Here’s something I don’t understand, if Meghan sent the letter to her father, doesn’t he automatically “own” its contents aswell?

    • Belli says:

      No, he owns the physical letter. And legally, he can sell that letter, which he did.

      The copyright of the contents belongs to the writer, Meghan.

      • Still_Sarah says:

        There is a problem with Omid Scobie (a royal reporter who is one of the writers of “Finding Freedom” book) saying MM knew her father would likely release the letter and because of this, she essentially wrote it for the public. These are his words in a video that can be found on YouTube. Since Scobie has written positively about MM in the past and appears to have access to the Sussexes, I’m not sure how she will get around this tidbit.

  11. STRIPE says:

    Can someone familiar with British law tell me what the MOSs argument is for the letter?

    The facts seem to be: 1. it is illegal to publish someone’s writing with out their permission, 2. they published a letter written by Meg.

    So is their argument that it wasn’t illegal, that it wasn’t her that wrote it, or because she sent it to Tom it was his to publish? Or something else I am missing?

    • Becks1 says:

      Their argument is that there was a public interest in the letter – there are exceptions to the copyright rule, and that’s one of them.

    • lilly22 says:

      It’s not just in the public interest law, but the defense seems to be claiming Meghan relinquished her privacy and copyright by using said letter for the “friends” story in People. Thus, other aggrieved parties, i.e. her father have the right to release said letter in order to defend himself from the negative publicity. This is part of the reason why her lawyers stated she did not authorize her “friends” to speak on her behalf for the People article. However, their second part of said defense would be since she, as the public figure, would have the burden and the responsibility to notify the media outlets who insinuated or summarized some contents of the letter, her letter was private and the contents private in order to not let the letter be used for disparaging publicity for other non public figures i.e. her father.

      Before people jump on me, I’m using the word aggrieved in a legal sense. In addition, the above is just what appears to be the tabloids legal tactic. I’m not saying I agree or think it’s right. From a law point though, it’s a pretty good strategy and probably their only avenue. Still feel in British courts she has a good chance of winning.

  12. Lorelei Gilmore says:

    The issue is damages. I am a US lawyer (not UK), and as I read it, all of the “extra” stuff that the judge struck would have gone to the appropriate amount of damages, not to the question of liability. As the judge held, “The costs and time that would be required to investigate and resolve the factual issues raised by the case as currently pleaded bear no reasonable relationship of proportionality with the legitimate aim of recovering some additional compensation for emotional harm.”

    He added that “dishonesty, malice, or bad faith are irrelevant to liability for misuse of private information”, saying: “Such matters have no role to play as an ingredient of the claim.”

    “The Court needs to keep a watchful eye on the proportionality of litigating matters which go solely to damages,” he said.

    As a result, even if Meghan wins on her core claim of misuse of private information, the amount of damages she can recover will be limited; she can’t argue that the paper’s malice or bad faith should be a factor to justify a higher damages award.

  13. Awkward symphony says:

    The people mag piece is straight up regurgitating daily fail fanfiction😒 they make it seem like Meghan lost the whole thing when in reality it’s like both sides coming in to set the rules for their long dance battle!
    They left out the crucial part where the judge said they could re introduce the struck out parts meaning nothing is changed except the technicality (inital wording)of the case! The articles can still come up to prove how they used the letter excerpts to form a bad image of Meghan=smearing campaign

    • Beach Dreams says:

      People Magazine now has a British editor so it’s not surprising that they’re basically repeating whatever the Mail and other tabloids claim about the case.

  14. aquarius64 says:

    To go after the malice side of the suit Meghan really has to go after Toxic Tom. She can’t prove Daddy was blackmailed by the Fail to do the hit pieces on her and Harry or not of sound mind. She really doesn’t have the stomach to do it therefore it’s not pursued. The thing if Meghan lets Daddy slide TT will know he can bully her in the media for the rest of her life. IMO Meghan needs to take her father down in court to completely be free.

  15. Catherine says:

    All British law is meant to be murky – to keep the peasants under control. Watch the BBC version of “Bleak House” with Gillian Anderson – Jarndyce v. Jarndyce!!!! Which I think this case will dissolve into, sadly.