Fears raised over judge-led privacy laws after Meghan, Duchess of Sussex’s legal victory

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  • Meghan, Duchess of Sussex
    Meghan, Duchess of Sussex
    American actress
  • John Whittingdale
    British politician; was appointed Secretary of State for Culture, Media and Sport (born 1959)
Meghan, Duchess of Sussex, won her battle against the Mail on Sunday in the Court of Appeal on Thursday - Stefan Jeremiah
Meghan, Duchess of Sussex, won her battle against the Mail on Sunday in the Court of Appeal on Thursday - Stefan Jeremiah

A former culture secretary said on Thursday that it was a “matter of great concern” that judges were creating far-reaching privacy laws without parliamentary scrutiny in the wake of the Duchess of Sussex’s legal victory over the Mail on Sunday.

John Whittingdale led a chorus of outrage over the Court of Appeal ruling on Thursday that prevented the Duchess’s "credibility" from being tested at trial.

The Mail on Sunday said it would now consider a further appeal to the Supreme Court in what would be the biggest privacy case heard by the highest court in the land.

Politicians, lawyers and even a senior judge expressed their growing fears that privacy laws that curtailed freedom of speech were being framed by judges without parliamentary scrutiny. MPs and peers will now come under pressure to consider a new Bill of Rights - to replace the Human Rights Act - that would give more power to free speech over the right to privacy.

'This has been a concern for a long time'

John Whittingdale, the former culture secretary and chairman of the culture select committee, said: “That the courts are interpreting the law to extend the right to privacy without parliament properly considering what should happen is a matter of great concern. This has been a concern for a long time.”

A senior judge, who declined to be named, said there was now a “strong argument” for a domestic Bill of Rights to replace the Human Rights Act, which enshrines the European Convention on Human Rights in British law. But the judge complained that Parliament had not wanted to get involved, preferring that the courts were the ones “sticking their faces in the wasps’ nest”.

The Duchess, a one-time American actress who married Prince Harry in 2018, had successfully sued Associated Newspapers Ltd, publisher of the Mail on Sunday, for a breach of her privacy, data protection and copyright after it printed extracts from a handwritten letter to her father, Thomas Markle.

On Thursday, the Court of Appeal upheld the High Court ruling and said that the Duchess’s "unfortunate lapse of memory" over briefing her biographers should not change the outcome.

In a statement, the 40-year-old Duchess said: “This is a victory not just for me, but for anyone who has ever felt scared to stand up for what’s right.

“The courts have held the defendant to account, and my hope is that we all begin to do the same because as far removed as it may seem from your personal life, it’s not. Tomorrow it could be you.”

Associated Newspapers 'considering appeal' to Supreme Court

Associated Newspapers said it was “very disappointed” by the result, adding: "We are considering an appeal to the Supreme Court." The publisher said its articles had raised matters in the public interest and that the case should have been allowed to go to trial.

In Thursday's ruling, Sir Geoffrey Vos, Master of the Rolls, said: “Essentially, whilst it might have been proportionate to disclose and publish a very small part of the letter to rebut inaccuracies in the People article [a US magazine], it was not necessary to deploy half the contents of the letter as Associated Newspapers did.”

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