8th January 2022
I do not tend to blog and tweet much about the areas of law in which I do most of my professional work as a solicitor: commercial law and media law.
This is for a variety of reasons, including the ability to commentate freely on things where there is no possibility of a conflict of interest.
So that is why I tend to blog and tweet about public law and constitutional matters, where I am less likely to have a conflict of interest.
But from time to time a media law matter comes up which I can commentate on without any concerns for conflicts of interest.
And so this week I was quoted in the Washington Post on the Meghan Markle matter.
The piece is here, and my quote as published was:
My quote as given was:
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The Markle judgments can be found here.
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I thought it may be of interest to add a little to my quote on this blog.
High-profile litigation often exists on two levels – how it is played out in the media, and what is actually happening as a matter of hard litigation.
And here, there were may reports in the media that framed Markle in a certain way.
But the Mail on Sunday case was always weak at law – and in the end it was so weak that it did not even get to trial.
Weak cases are rarely fought in civil litigation – the weaker side will usually tend to settle as soon as possible.
And so the interesting question is why it was fought – and in the answer to that question will be the genuine significance of this case.
The case is less significant in its detail than in its very existence.
The case itself has almost no legal significance: the applicable law was so obvious that Markle got summary judgment, despite the array of legal skill and talent employed by the newspaper.
But the cultural and media significance is – perhaps – profound.
Something seems to have changed.
But what?
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What has changed is that Meghan is the first royal of colour. That is intolerable to the “Hurrah-for-the-Blackshirts” Daily and Sunday Mail. Many other reasons for its vendetta against her will be put forward, but insidious racism is at the heart of it all. I have been astonished at the snide remarks I have heard from people I had not thought would stoop so low. She and Harry are by no means paragons by the way, but such vitriol is astonishing.
That does nothing to explain why the case was brought and why it was defended. The sentiments you refer to are not new in the UK and were relevant to previous cases against the media. So your explanation does not work.
This is more about power dynamics.
The power dynamics of the non dom tax avoiding entitled Rothermere against the wife of the second son of the heir to the crown he thought would not fight back because royals are there to be targets of the press and not supposed to respond? And the apology hidden in a late night edition on Christmas Eve? The Mail is like every other red top harlot: lots of power but no responsibility. Thank god we have a free press but equally please god you are never door stopped for the truth never gets in the way of a good story.
Or just the gist of doing business and it gave the Mail so many other opportunities to blacken her reputation with headlines by innuendo throughout the trial. Just shameless opportunism to sell papers. Anyone who has been anywhere near Fleet Street knows the cost of losing in court is a fraction of the profits from the sensational extra sales. It’s just business. Peoples’ lives and reputations count for little in comparison.
The UK has always been a racist and xenophobic island.
As one of the Spaniards says to Robert Jordan in “For whom the Bell tolls” (chapter 16)
“ But are there not many fascists in your country ?
To which Jordan (the American /Englishman in the book) replies:
“There are many who do not know they are fascists but will find out when the time comes.”
Megan and Brexit have come at the same time. It has just taken a little while for the Mail to understand.
What indeed? Is it that the Mail on Sunday is now prepared to fight cases that it knows it can’t win because harassing and attacking someone that it bitterly dislikes is more important than any other consideration? Or is it because it has espied this as an opportunity, courtesy of Dominic Raab, to fatally weaken Article 8 of the Human Rights Act, which it, along with various other papers, was vociferously campaigning against when the legislation was still at the Bill stage? Or is it that a royal (albeit a rather semi-detached one) has decided to take on a newspaper in open court in a way that no other royal has actually done? Or is it all of these? Or none?
Not the second – as the privacy law applicable was not in doubt.
Point of pedantry: Article 8 surely refers to the ECHR, not the HRA.
Did the newspapers really campaign for selective inclusion/exclusion of convention rights during passage of the Bill? Or are you perhaps referring to the inclusion of s.12?
Not pedantry Robert – like most people who correct on ‘points of pedantry’, you are wrong! Article 8 is expressly set out as “Article 8” in Schedule One to the HRA: https://www.legislation.gov.uk/ukpga/1998/42/schedule/1
Well, this is what Hugo Young said in the Guardian, 12 Febuary 1999: ‘Unembarrassed by the fact that the Human
Rights Bill is a general law, applying to every
citizen in his or her relationship with state
authority, [newspapers] demand that the press
be treated differently … They propose that the
press, alone among institutions with public
functions, should stand above international
human rights law.’ As I remember it, s. 12 was an ill-fated attempt, introduced by Lord Wakeham of the Press Complaints Commission, to give Article 10 precedence over Article 8, which is what Raab intends to do.
I wonder if the Mail on Sunday was trying to bluff Meghan Markle, then the Mail tried to fight the case anyway when she took them to court in the hope that media pressure would affect the legal case in some way, leaning on the court of public opinion to swing in their favour.
It sounds ridiculous, but it seems very odd that the Mail’s lawyers went along with this. Surely, they must have warned the paper that the legal case was actually very weak and that media speculation rarely affects the outcome of a legal case.
My guess is that they were banking on Meghan not taking them to court since royals tend not to do that historically and that they were less interested in the legal case than the court of public opinion which they thought would be a better arena to make their case than the law courts. Maybe there were hoping to gain more exposure to disguise flagging sales and a sense of irrelevance from being replaced by social media/digital outlets? Hard to say. I’m just guessing here and I could easily be wrong.
I definitely agree that something seems to have shifted, whatever it is.
“it seems very odd that the Mail’s lawyers went along with this”
Lawyers advise – that is their (our) job.
I’m sceptical about seeing this through the race lens, as some do. Her status appears to be like that of Yoko Ono. Vilified for being a woman who refuses to simper in the background when becoming part of the British elite. The popular media & small c conservatives seem consistently troubled by women in particular who refuse to settle for the place grudgingly granted to them by the gatekeepers of ‘heritage’.
It seems to me that the publication of private correspondence is part of the Daily Mail’s campaign to create an adverse impression about Meghan Markle among its readers, and the wider public through reporting of the Daily Mail’s campaign. The Daily Mail of course would have been advised of the legal risks, however in my view they would have weighed up the consequences as being most likely monetary. So, the Daily Mail’s decision to proceed with publication and defending the litigation is in my view better viewed as their answer to the question ‘what is it going to cost to push our impression of Meghan Markle to X number of readers and social media users?’ The fact that they defended and lost is also part of the narrative that speaks to those who accept the Daily Mail’s impression of Meghan Markle, who then take the court’s decision for Meghan Markle as further evidence that the ‘system’ is favouring her. In other words, the Daily Mail’s actions are another way of pushing a message to the public, but with the added benefit that it throws a question mark over our legal institutions. They got several days of the headlines they wanted and lots of social media comments, but the fact they lost and their actions were wrongheaded is in the small print; the adverse impression of Meghan Markle, or the suspicion of an adverse impression, has been left among many people who might otherwise not have had such an impression. I’m afraid we should expect this strategy to become increasingly used by those with the means to undertake it.
Yes indeed. According to the Mail the entire Supreme Court are “enemies of the people”. Discuss.
I think the Mail was delighted to be sued by Meghan, because they fully expected to see her in the witness box, put lots of embarrassing questions to her, get some revealing answers, and sell a lot of newspapers as a result. They must have been as infuriated with the summary judgment as Donald Trump was when his lawsuits challenging the election were dismissed. They probably hoped to have her in the witness box to deal with quantum – but then she thwarted that by accepting a nominal sum in damages. And throughout the appeal hearing, Mail readers were given the impression that Meghan was in the wrong or had fatally damaged her case. Readers were never told what the real issues in the case were, how the right to freedom of expression is balanced against the right to privacy.
I think one thing that’s changed is that mainstream or legacy media or whatever you want to call it has significantly less power than it once had simply because of social media. Other voices can be heard – and what’s more, those voices are younger. Also, for one reason and another, those younger voices have a lot less respect for legacy media, to the extent that they pay it any attention at all. Meghan Markle is young enough and savvy enough to know that Mail on Sunday waging war on her does her very little harm and probably does her good with a large swath of the anglophone population. Why would she throw in the towel?
Perspicacious comment. Certainly looking at opinions of MM in my multi-generational wider family the older (over 70) whose news sources are (literally) the DM and ‘the Telly’ dislike her whereas the younger (under 40) who rarely read a paper or traditional TV news, all support her and Harry.
My answer is based mainly on a judgment of human nature and an instinctive reaction. Could it be that they just thought they were stronger than she was and that she would either back down or go to pieces?
I can’t really ground this evidentially, but my impression is that there is a cultural shift within ‘the royals’ (very broadly construed). There is an older generation (Queen, Charles, etc.) who still adhere to a kind of noblesse oblige attitude to the media .. reticence, being ‘above that sort of thing’, assuming corresponding public deference .. and a younger generation which behaves much more in the way that (admittedly very privileged) private citizens would.
Is that the kind of change you’re thinking of?
The Mail perhaps hasn’t twigged to that, and thinks it can have a go at the royals with relative impunity, because the royals wouldn’t ‘descend’ to hitting back through the courts.
And now they will .. at least the younger ones.
Has something really changed considering Charles sued the Daily Mail in the 2000s for breach of copyright and confidence over the publication of extracts of his diaries and similarly won a summary judgement upheld at appeal? Genuine question, I’m not a lawyer and appreciate there may be very significant differences in the cases.
That is a very good question in response to this post, and I have no quick answer.
DAG asks whether this case has a wider importance – or whether an independently wealthy Hollywood film star who has no need to maintain good relations with the press, and no media representatives who wish to horse trade with the media is an outlier.
An alternative perspective might be that the MailOnline’s coverage of the case might have reached quite a large number of readers in North America, whereas the front page print retraction is unlikely to have been read by any US readers at all.
A cynic might suggest that if the aim of the exercise was to damage Markle in her home market, it might have worked.
Then you must not have noticed the clever way her fans reproduced the apology as front page breaking news and blasted it into stratospheric reach via social media. She was trending for 2 days in both social and traditional media and from the looks of it the Daily Fail lived up to it reputation of being a failure.
No, you can’t do that, (except that you just did) end a blog with an unanswered question. Please answer it. I am afraid I am so disinterested in this case and the people involved in it, that I cannot answer the question, an answer which is probably obvious. It irks me that I cannot answer it, and I am so disinterested in the case I can’t be bothered to work out or find out what the answer is, so might someone who is much more plugged into this event than I , please give an answer or answers…thankyou in advance.
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Yes okay you win, very good!
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What indeed!
Is it not said that a period of chaos usually precedes change?
Well, whatever it is that’s shifted, this individual got a lot of pleasure from pondering the question and in particular, reading the comments :))