How Prince Harry & Meghan Markle's 'Megxit' Move May Help Reshape The Law

Ronald Marks – The so-called ‘Megxit’ exit from Royalty by Prince Harry, Megan Markle and little Archie may be helping to create some greater definition around the law relating to privacy in both their new home in Canada, and elsewhere.

Adapting rapidly to their new, North American home they have embarked on the American lifestyle practice of litigation, having their lawyers at Schillings issuing proceedings – on both sides of the Atlantic.

As the NYTimes reported, even before they have picked a permanent place to live in Canada, the Prince Harry and Meghan Markle has been followed by press photographers who use telephoto lenses and other methods, including subterfuge, to capture potentially valuable images of them in private moments for Britain’s tabloid press.

One of the reasons given by the Sussexes for their exit from Royal life has been the exposure to the media.

The letter from Schillings was sent to both the Daily Mail and The Sun tabloids. Schillings is the same law firm representing Meghan in a separate legal case against another British tabloid, the Mail on Sunday.

Schillings bill themselves as the go-to privacy protection firm, proclaiming on their site “we are the only business in the world to deploy – under one roof – intelligence experts, investigators, cyber specialists, risk consultants, lawyers and top people from the military, banking and government.”

Whether the Schillings threats will be sufficient to throw the media off-scent is another matter, however. Indeed one of the criticisms levelled at the royal couple is their ability to ‘finesse’ publicity for their purposes, but decry its more feral attributes.

The lawyers say the photographs, taken while the duchess was walking the family’s dogs, were made by photographers hiding in bushes. The letter took special issue with the commentary around the pictures that suggested they had been taken with Meghan’s consent.

Other photographers, the letter said, have tried to take pictures of the couple through windows when they were inside the house in North Saanich, and some have set up camp outside the home. The letter also expressed concerns for the safety of the pair because of the way the paparazzi were driving.

Princess Diana Media Fears

Prince Harry has compared the media’s attention to that imposed upon his late mother, Princess Diana.

Meghan is already suing the Mail on Sunday and alleging the newspaper of breached copyright in addition to misuse of her private information relting to the letter to her father.

However, the Mail on Sunday argued there was “huge and legitimate” public interest in publishing the letter, which is of interest to both media and privacy lawyers.

But a key question that arises is whether a private letter can be protected by copyright – and if so, who owns it? Copyright protects original literary works, among other things, such as books and literature – and this also includes letters.

The author of the letter would need to provide consent to the use of the letter although exceptions, such as reporting current events, is an exception to the rule.

In the UK, the Data Protection Act 2018 (the UK’s implementation of the General Data Protection Regulation (GDPR)) provides protection for personal information.

This provides that personal information cannot be processed or published without permission. It may be that a breach of this law is allowed when it is necessary for the public interest, for example if it supports or promotes democratic engagement.

But just because something is interesting to the public, does not mean that it is in the public interest. Public interest requires a higher level of justification, in order to justify the breach of the individual’s human rights.

It is a case that has already been described as the ‘privacy case of the century’ and has provokes high interest among media and privacy lawyers.

In a scathing statement, Prince Harry said at the time that some newspapers had “vilified her almost daily for the past nine months” and claimed they had published “lie after lie” at Meghan’s expense simply because she was out of public view on maternity leave.

These are just some of the issues awaiting clarification via the Markle letter issue.

Canada’s ‘Paparazzi Culture’

But in Canada, their new country-of-residence, the paparazzi culture that is drawing the ire of Harry and Meghan is new territory for Canadian media and privacy laws, which may well result in new focus upon these key areas.

Canadian privacy lawyer David Fraser, a privacy lawyer at McInnes Cooper in Halifax, Nova Scotia, said that it was possible the couple may argue that their privacy was invaded when paparazzi took a picture of Markle in the Vancouver Island park. British Columbia has a law permitting lawsuits for invasion of privacy.

“Most people would conclude you have a reduced expectation of privacy when you’re in a public place,” Fraser told Insider.com. “Canadian courts have been trending to say it’s not that you have no expectation of privacy, but your privacy is very circumstance-specific.”

Fraser said he thought that based on the BBC’s report, which said Markle’s lawyers said photographers had tried to capture the interior of Harry and Markle’s home, it’s possible they may also argue that they were subjects of surveillance. And a lawsuit in Canada based upon illegal ‘surveillance’ stood a greater chance of success, particularly given that the photographs were taken in a public park.

The Megxit brouhaha and the increasingly combative royals are likely to further push the litigation button that may create additional headlines.

As journalist and media expert David Banks told the PA news agency recently a trial would go global, could cost Harry and Meghan millions, and could actually lead to more revelations about the duchess’ relationship with her estranged father Thomas Markle.

If the case is not settled beforehand, both Harry and Meghan could even appear in court to give evidence, just as singer Sir Cliff Richard did when he sued the BBC over its coverage of the police search of his home.

Meanwhile, it’s watch this privacy and media law space for what Prince Harry and Meghan Markle will do next.