The right for privacy and the right for information are extremely important rights in modern society that complement, but in many cases conflict each other. Recent cases such as investigation of Google Street view, which was collecting Wi-Fi data in addition to digital images, Google has intercepted and stored Wi-Fi transmission data, which includes email passwords and email content or recent Facebook Terms and conditions scandal where it was revealed that Facebook was reading private messages of its uses and used personal data for commercial purpose misuse of personal costumers data by third parties all raise an important questions and great public concern. However, in this article we are going to represent the recent case of Megan Markle v. Associated Newspapers, which can be seen as a privacy case of enormous magnitude because of its signify and public interest. We will also question whether it is possible to protect privacy by copyright law.
Warren and Brandeis wrote ‘’The most influential of all law review articles’’ The Right to Privacy in 1890, at that time, no court of last resort in the United Stated had yet recognized a commonlaw right to privacy. They created a concept in the common law, which they conceived of as a “right to be let alone.” Today, the right to privacy is widely recognized by state statute and common law 55 and is constitutionally protected against governmental intrusion’’ (Keller, 2016) and it is also protected by European Convention on Human Rights.
Megan Markle, the American actress and wife of Britain’s Prince Harry has been a major public sensation in a past years due to marriage to Prince Harry. She is followed by paparazzi on every occasion possible. UK tabloid Mail on Sunday made a step further and published her handwritten letter apparently obtained from her father Thomas Markle. He gave it to them in a response to the interview of Megan Markle’s friend published in People magazine who gave certain content details of the letter. Meghan Markle filed a lawsuit in October 2019 against the UK tabloid Mail on Sunday and its parent company Associated Newspapers for its part for publishing her private letter to her father, Thomas Markle. She claimed misuse of private information, infringement of copyright and breach of the UK Data Protection Act 2008. Only a few days after the lawsuit was first publicly announced, there was a new claim that can have major legal ramifications. Recent report claims that Meghan Markle have revealed the contents of her personal letter before the Mail on Sunday actually published it and that in fact, she violated her own privacy by telling some of her friends the content of the letter, which they revealed to People magazine. Thomas Markle reportedly released excerpts of the letter that his daughter had written in order to defend his reputation. He said: ‘I decided to release parts of the letter because of the article from Meghan’s friends in People magazine. I have to defend myself. I only released parts of the letter because other parts were so painful. The letter didn’t seem loving to me. I found it hurtful.’ He previously told this newspaper: ‘The letter was presented in a way that vilified me and wasn’t true. It was presented as her reaching out and writing a loving letter in the hope of healing the rift, but the letter isn’t like that at all. I have the right to defend myself. (Graham, 2019) He also claims that he did not make any money by publishing the letter.
But let us go back to the start.
The limits of privacy laws are extremely apparent when this right comes into conflict with the right to the press to cover newsworthy events. As mentioned in previous article about Jennifer Lopez, paparazzi and newsletters relay not only on copyright law but also argue the right to leak certain information because they are public interest.
In the UK, the Data Protection Act 2018 provides protection of personal information. Personal information cannot be processed or published without permission. But it can be possible to argue against this law, when it is necessary for the public interest to process or publish this kind of information. It is important to note, that not everything that is interesting and important to the public is public interest. ‘‘ Public interest requires a higher level of justification, in order to justify the breach of the individual’s human rights.” (Bosher, 2019)
In a case from US, Time, Inc. v. Sand Creek Partners Time filled a lawsuit against Sand Creek. Photographs of Julia Roberts in her wedding dress at concert of her husband Lovett held at Sand Creek’s facility were taken by Time’s photographer. Lovett and Roberts got married that day without public announcement. Sand Creek officials took hold of film and didn’t return it to the photographer. The magazine publisher sued to get photos back and Lyle Lovett claimed that the photos are his because he had a property and private interest in his name or likeness. Court however decided that ‘newsworthiness’ of the images depicted on the films have primacy over privacy right which Lovett may have in those images. ‘’Roberts and Lovett are widely known celebrities and their appearance on stage on the day of their highly-publicized but theretofore unannounced and private wedding ceremony, with Roberts still wearing her wedding dress, was a newsworthy event of widespread public interest.” (Samuelson, 2014) Court ruled in a favour of Time, which was then free to publish the photographs in the course of new reports.
‘’In general, when a person’s picture is used to illustrate a non-commercial, newsworthy article, his interest in the use of his likeness or image must be evaluated in light of constitutional interests found in the First Amendment.’’( Time Inc. v. Sand Creek Partners, LP, 825 F. Supp. 210 (S.D. Ind. 1993)).
In the case of Meghan Markle, her letter is protected under UK copyright law, which states that the owner of a piece of work is the person who created it. The law allows them to prevent and restrict others from copying or sharing that work without permission. The author of the letter is normally the first owner of copyright in their literary work (British Copyright Council). This means that in order to share the content of the letter Mail on Sunday should have gotten the permission of the writer in order to avoid copyright infringement. However, in some circumstance’s permission is not needed for instance if the use is for the purpose of:
- Reporting current events (public interest)
- Review or quotation (material used has to be already available to the public)
This copyright exceptions have specific criteria and requirements that need to be followed. However, copyright does not prevent the recipient of a letter from showing the original letter to another third party as this does not involve reproduction (British Copyright Council).
Court will take in consideration whether the work was confidential or it has already been published or if legitimate public interest could be demonstrated. Because of recent accusations of her giving the information of the content to her friends it is possible that Meghan Markle will have to testify under oath and if those accusations are found to be true and she indeed violated her own privacy this could have an enormous impact on her case. Not to mention that Duchess of Sussex can face further exploration of her relationship with her father and share even more private information.
PROTECTION OF PRIVACY BY COPYRIGHT LAW
A trend of recent cases suggest that copyright law may provide to some extant in some circumstances a way to protect privacy interests of individuals seen in photographs.
The Right to Privacy is clearly focused on the privacy of the subject of photographs and newspaper articles:
‘’The right of one who has remained a private individual, to prevent his public portraiture, presents the simplest case for . . . extension [of a cause of action for invasion of privacy]. If casual and unimportant statements in a letter, if handiwork, however inartistic and valueless, if possessions of all sorts are protected not only against reproduction, but against description and enumeration, how much more should the acts and sayings of a man in his social and domestic relations be guarded from ruthless publicity.’’ (Keller, 2016)
In a case Monge v. Maya Magazines, Inc. magazine published photographs of her wedding. Monge was a celebrity who kept her marriage to her manager secret from family as well as fans. She sued for copyright infringement and court ruled in her favour.
‘’Although the Ninth Circuit recognized that the wedding photographs in Monge were newsworthy, it disagreed with Maya’s contention that the use was transformative. The photos were “not physically or creatively transformed” and were unquestionably commercial in nature. Maya supplanted the photographers’ right to control first publication of the photographs and right to demand a hefty sum as compensation for the right to publish the photos. Had Maya merely wished to break the news of Monge’s wedding, the court noted that Maya could have published information about the marriage certificate. It was not necessary to publish the photos to expose the secret wedding.’’ (Sanders, 2014)
Hill v. Public Advocate of the United States involved homosexual couple from New Jersey who posted online an engagement photograph taken by their friend named Hill. ”Some politically conservative associations in Colorado used the kiss part of the photo in political advertisements targeting state legislators who supported a same-sex marriage bill. Hill sued for copyright infringement and the gay couple sued for misappropriation of their likeness.
‘’The court threw out the misappropriation claim on the ground that the First Amendment protected Public Advocate’s use of the likeness because it “reasonably relates to a publication concerning a matter that is newsworthy or of legitimate public concern.” However, when it came to the copyright claim, the court saw nothing newsworthy in the use of the kiss part of the photo and little transformative in it either, even though the use was clearly for a different purpose than the original. The photograph was creative and the taking was qualitatively substantial. The court denied Public Advocate’s motion for summary judgment on the fair use issue without considering the harm to the market factor. ” (Samuelson, 2014)
However, it is hard to recognized and determine whose privacy is being protected. The problem becomes bigger by recent cases demonstrating that the copyright owner as a potential party whose privacy interests can be asserted through a claim of copyright infringement, even if the owner is not the author or the subject of the work. It is also hard to distinguish between the party protected by the right to privacy and the party protected by copyright law. The law will have to increasingly protect people from privacy violations and expand the limitations of privacy rights. In many cases copyright law and privacy rights do overlap but it is complicated to justify the privacy rights of subjects through current copyright because copyright is fully alienable.
Samuelson, Pamela, Protecting Privacy Through Copyright Law? (May 1, 2014). Visions of Privacy in the Modern Age (Marc Rotenberg, ed., 2014, Forthcoming). Available at SSRN: https://ssrn.com/abstract=2435288
Keller, Deidre A., Copyright to the Rescue: Should Copyright Protect Privacy? (2016). 20 UCLA J.L. & Tech (Spring 2016). Available at SSRN: https://ssrn.com/abstract=2906094
Graham C., 2019. Why I shared Meghan’s ‘hurtful’ letter: Duchess’s father Thomas Markle reveals he kept note secret for SIX MONTHS and never intended share it until HER friends spoke to a US magazine about it and ‘misrepresented’ its contents DailyMail. https://www.dailymail.co.uk/news/article-7541785/Duchesss-father-Thomas-Markle-reveals-kept-note-secret-MONTHS-never-intended-share-it.html
British Copyright Council https://www.britishcopyright.org/information/letters/
Bosher H., 2019. Meghan Markle letter: what the law says about the press, privacy and the public’s right to know. The Conversation. https://theconversation.com/meghan-markle-letter-what-the-law-says-about-the-press-privacy-and-the-publics-right-to-know-124619