Prince Harry acknowledged a rift between his brother, Prince William, and the possibility of moving to Africa in a candid interview with ITV.
It’s war! Prince Harry and Duchess Meghan have opened legal hostilities against the British tabloids – and they are likely to win. But it’s also likely to be a Pyrrhic victory.
Legal and media experts predict this latest attempt by royals to rein in the unrestrained practices of the rowdiest media rags probably will not end as well as the Duke and Duchess of Sussex hope.
It might even mean they would have to testify in court if the cases go to trial. The royals generally avoid appearing in court so Harry and Meghan would be the first to do so in more than a century. There would be no escaping that media spotlight.
The tabloids are standing by their stories and vowing to fight vigorously against the lawsuits, arguing they have done nothing wrong.
Nevertheless, “both (Harry and Meghan) will win their individual cases,” says Mark Stephens, a leading media lawyer in Londonand an expert in transatlantic law.
Will they make a difference in altering tabloid behavior? “Most assuredly not,” Stephens says. “You have to question the wisdom of this; no one is looking at this holistically on the royal side.”
Harry, 35, and Meghan, 38, seem determined to poke the pugilistic tabloids to punish those they believe have waged a “malicious,” “relentless” and even racist media campaign of criticism since the birth of their baby Archie on May 6.
Meghan spoke about her distress about her bad press in an interview for an ITV film about their recently concluded tour of southern Africa, “Harry & Meghan: An African Journey,” which aired in the U.K. on Sunday and on ABC in the U.S. on Wednesday.
“I never thought that this (media scrutiny) would be easy, but I thought it would be fair. And that’s the part that’s really hard to reconcile,” she told ITV’s Tom Bradby, a TV journalist and friend of the young royals.
Fighting back may feel psychologically satisfying but Stephens thinks it’s a hasty and imprudent legal strategy.
“You may have a case you can win but you have declared war on the entire media, which will (respond by) reporting on you in a very negative way,” Stephens said. “Every story will have a negative spin, it will be a constant drip-drip-drip that will poison the public perception over time……this (move) is not well advised.”
In The Guardian, media columnist Jane Martinsonsuggested the Sussex cases are likely to be a legal landmark for “the line it seeks to draw in the sand” between the modern monarchy and the media.
“It will probably be nasty, brutish and, with the phone hacking case not coming to trial for a year at least, not particularly short. Wherever your sympathies lie, there are also unlikely to be any winners,” she wrote.
Here’s what’s at stake:
He’s filed a lawsuit against The Sun and The Daily Mirror and their parent companies alleging hacking of his phone voicemail dating back years before the advent of smartphones, and a 20-year cover up of wrongdoing.
Phone hacking – surreptitious tampering to access voicemail messages – is illegal in Britain and the United States, as Rupert Murdoch’s News Corp (owner of The Sun) learned in 2011 when the News of the World tabloid was shut down in the wake of scandalous revelations that its employees hacked into the phones of celebrities, politicians, murder victims and royals.
Although there is a six-year statute of limitations, Harry and brother Prince William were only notified by police of the other two tabloids’ alleged hacking recently so a civil lawsuit is still possible, Stephens said. Harry has chosen to sue; William did not.
Up until now, most British news organizations were paying to settle such suits to avoid having criminal actions exposed in court, Stephens said. And, unlike in the U.S., there is a cap on damages so a plaintiff has less incentive to push for a trial because they could end up paying the other side’s fees if they reject a settlement offer.
So why does Harry want a trial now about old allegations? Hasn’t News Corp, at least, already paid with the loss of one of its best-selling tabloids, not to mention a humiliating dressing down in Parliament?
“I think (Harry’s) motivation is to expose the wrongdoing in as much gory detail as possible,” Stephens says. “And he has fallen in with a group of lawyers who are dead set on trying to run a case to its bitter end so the full extent of wrongdoing can be illustrated. It does not bode well for editors.”
Hers is aimed at the Mail on Sunday, which published in February an anguished letter she wrote to her estranged father, Thomas Markle, after he failed to turn up to walk her down the aisle at her wedding to Harry in May 2018.
Her suit argues that the Mail on Sunday violated long-established copyright law, which holds that the contents of a private letter belong to the writer, not to the recipient.
Royals have already won such cases, dating as far back as Harry’s ancestor, Prince Albert, who won a case in 1849 against a printer who tried to publish Albert’s private family etchings without permission. More recently, Harry’s father, Prince Charles, sued the Mail on Sunday and won after the paper published extracts of his private diaries from an official trip in 2005.
“There’s a history going back to the 1800s that the person who writes the letter owns the copyright,” Stephens says. “The person who receives the letter is conveyed the gift of the physical paper on which it is written, but (Meghan) controls its reproduction because she owns the copyright and it can only be published with her consent.”
She also argues that publishing the letter was an invasion of her privacy. Here, British laws have shifted recently to be more like strict French privacy laws than like those in the U.S. (Prince William and his wife, Duchess Kate of Cambridge, successfully sued under French privacy laws a French magazine after editors published paparazzi topless photos of Kate in 2012.)
“We’re in a situation where the law (here) has moved dramatically toward privacy, so the analysis here would be: Does she have a reasonable expectation of privacy?” Stephens says.
The Mail is likely to argue there is a “public interest” in publishing the letter and that the public has a “right to know” because they are public figures and there is keen public interest in anything to do with Harry and Meghan. But she did not write the letter as an official of state.
“It is pellucidly clear that letter was from a pained daughter to a pained father, and anyone reading it understands that,” Stephens says.
The public interest in publishing it could have been satisfied if Thomas Markle had simply quoted from it (under “fair use” doctrine) to the paper to explain his side of the father-daughter falling out. “But giving it to the Mail on Sunday (to publish) crosses the line,” Stephens says.
“Yes, it’s of interest but is it essential information to know? No. In the balance between privacy and right to know, (British) courts come down on her side,” Stephens said.
There are differences between American law and British law when it comes to the media; for a start, America has a written constitution and an explicit First Amendment. But copyright law is similar in both countries.
Leading First Amendment lawyer Floyd Abrams cites a 1987 case in the U.S.: Writer J.D. Salinger’s lawsuit against the publisher of a Salinger biography who quoted from unpublished Salinger letters despite the reclusive Salinger’s wishes. The federal courts held that Salinger’s right to privacy and to control his work outweighed the public’s right to know the contents of his letters.
“It is true that rather modest quotations from copyrighted works may be quoted without permission — ‘fair use’ is the legal terminology — but particularly when the letters had previously been unpublished, the law (in the U.S.) leans heavily in the direction of protecting the rights of letter-writers,” says Abrams.
So could, say, the National Enquirer publish a private, unpublished letter from a celebrity without permission and without consequences? “The National Enquirer would act at its peril if it published a previously unpublished letter of a celebrity, however famous that person was,” Abrams says.
Even without an explicit First Amendment, Britain’s media is hardly cowed: Most publications in the U.K. continue to report robustly and within British law, including investigations about official confidential matters, Stephens says.
American-born Meghan, a former actress, seemed to judge the British media against the American media – and she’s shocked.
“When (the media) are saying things that are just untrue, and they are being told they’re untrue but they’re allowed to still say them – I don’t know anybody in the world who would feel like that’s okay,” she lamented in her ITV interview.
She even suggested that America doesn’t have obstreperous tabloids (yes, we do), thus explaining why she underestimated how the Brits would behave. Her British friends warned her that the tabloids would “destroy” her, but she ignored them.
“And I very naively – I’m American. We don’t have that there – (said), ‘What are you talking about? That doesn’t make any sense. I’m not in any tabloids,'” she said.
Now she can’t escape their front pages and websites. And now reports are emerging the couple plans to spend more time in the U.S. in coming months. Will American tabloid coverage become more hostile to them?
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