Success for Duchess: Court rules in favour of Meghan’s friends’ anonymity

August 20, 2020

3 min read

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What's going on here?

The High Court has approved Meghan Markle’s request to maintain the confidentiality of five friends who gave an anonymous interview about her to People Magazine.

What does this mean?

The application was made at a preliminary stage of this case, in which the Duchess of Sussex is suing Associated Newspapers for misuse of private information, breach of duty under the GDPR and copyright infringement after the media organisation published extracts of a letter sent by the claimant to her father in 2018. The letter was first referred to in an interview given by Meghan’s five friends to the US magazine People.

Parts of the duchess’ claim were struck out in May, including allegations that Associated Newspapers had acted “dishonestly” and that they had deliberately “stirred up” conflict between Meghan and her father.

Following this judgement, Associated Newspapers requested that the friends who gave the interview to People magazine were named, pursuant to Part 18 of the Civil Procedure Rules (CPR) which concerns requests for further information. The duchess, represented by Schillings, provided the identities of the friends in the form of a Confidential Schedule. This was followed by a successful application for an injunction made by her solicitors citing CPR Part 18.2 and CPR Part 5.4C (supply of documents to a non-party) to prevent the publication of the names of her friends contained in the Schedule.

What's the big picture effect?

Usually, in privacy or defamation actions against the media it is the claimant who seeks disclosure of journalists’ sources. In response to this, journalists point to the protection given to confidential sources under the common law. In this case, however, the roles were reversed.

Being a high-profile case, Meghan was keen to keep the names of her friends private. Reasons for this included: avoiding “media intrusion” into their privacy and the “appearance of seeking publicity for themselves”. Reference was also made to the children of the friends and the potential impact on them of media publicity about their parents.

The defendant’s arguments relied heavily on the principle of open justice, which In Mr Justice Warby’s words, has evolved to “deter inappropriate behaviour by the Court, to ensure that evidence becomes available, and to limit the risk of uninformed and inaccurate comment about the proceedings.” In recognition of this principle, Warby mentioned Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 [2020] AC 629, in which the Supreme Court established that a non-party may request copies of documents that are not included in CPR 5.4C.

On this occasion, however, the judge decided that the principle of open justice was overridden by the reasonable expectation of confidentiality when Meghan’s friends provided their story to People magazine. He found that there was no substantial threat to open justice at such an early stage of the proceedings, when a trial was not yet underway and that the information would not advance the public’s understanding of the legal process. What mattered, therefore, was the reasonable expectation of privacy attached to the condition of anonymity on which the friends had spoken to People magazine. Protecting Meghan’s friends from the “glare of publicity” is essential at this early stage in the litigation. Nevertheless, it is worth noting that this decision is only temporary and could change, should one or more of the sources give evidence in court.

Report written by Mimosa Canneti

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