Meghan Markle Needs to Hire a Better Legal Team

Meghan Markle is not a lawyer.  I want to remind everyone that on Suits, Meghan didn’t even play a lawyer on TV.  She was a paralegal.  But I am personally surprised at how litigious she is, since she played a legal professional on TV, she should be able to spot a frivolous lawsuit from a mile away.  But she and Harry have proven that they are immune to seeing their own hypocrisy.  

If you have not been following the Duchess of Sussex’s lawsuit, I’ll give you a brief summary.  Around the time of her wedding to Prince Harry, Meghan wrote her Father, Thomas Markle, a personal letter.  This same letter was later published by the Daily Mail, a tabloid in the UK.  Meghan then sued the Daily Mail alleging: breach of copyright, breach of data regulation, and a breach of her privacy.  I will be analyzing her arguments regarding her privacy claim at length in this blog post.  

First, I’ll deal with the copyright claim.  In order to have a valid claim for breach of copyright, you need to have a work of your own intellectual property.  There also have to be trademarks filed.  This is a letter, not a piece of Meghan’s intellectual property, and thus I cannot see a Court seeing this as a breach of copyright.  Now if she had filed claim against someone impersonating her “Archewell” Foundation, then possibly.  (Watch out hackers.)  But not a letter.  However, her team will attempt to state that once someone writes a letter, they own the entire contents of said letter.  This argument makes no sense to me; and which court would adopt this as precedent?  Will this apply to text messages? Emails? This is a dangerous and unworkable standard.  Can you image suing some for breach of copyright for sending screenshots of your texts to their friends?  It’s laughable.  

Second, the breach of data regulation.  This will be a nitty gritty part of the lawsuit.  The Court will likely consider her breach of data claim against the backdrop of “General Data Protection Regulation.”  I’ve taken a look at this document, and I believe Meghan will run into some snares because rectification is only permitted when information is published is “incomplete personal data” which paints them in a negative light.  Art. 16 GDRP.  However, information may be published “to protect the vital interests… of a natural person.”  Art. 6. GDRP.  This is Thomas Markle’s position, because he felt it necessary to clear his name after negative coverage in the press.  This is a toss-up for sure, and I am not sure how the Court will answer this question.  I will be watching this result closely.  

Third, and this is where Meghan’s case falls apart, her privacy.  Now I am not very familiar with UK law, but in the US if someone is a “public figure” they forfeit various privacies enjoyed by individuals.  A public figure could not sue and win on a claim of “privacy” in an American Court.  I am shocked that Meghan is even trying, because she should know better.  And before you ask, an American celebrity would get a gag order on a rogue family member to keep things from getting leaked.  Our courts have always been hesitant to curtail anyone’s freedom of speech.  

According to several articles Meghan will argue that she is entitled to privacy under the European Convention on Human Rights.  Well I read it.  Yes, there is a section on respect for private family business, but there is also a lengthy section which states that “freedom of expression… and [the freedom] to receive and impart information and ideas without interference by public authority.”  Art. 10 ECHR.  This right to freedom of expression is curtailed for several reasons, which include releasing confidential information.  This is the core of the issue in this lawsuit.  

The Daily Mail has argued vehemently that as a member of the Royal Family and as the HRH The Duchess of Sussex, Meghan is not entitled to the same privacies as a regular person.  Their exact wording was due to her “wealth and privilege.”  I would have personally argued that due to her status as a public figure, and her role in supporting the Crown she is not entitled to the same privacies.  But that is neither here nor there, because Meghan’s legal team has latched onto the phrase “wealth and privilege” and completely ran with it.  

Several news articles are reporting that Meghan is going to outline how the Royal Family is funded.  How is this relevant?  This will likely come out of her witness statement, and in it she will posit that she is not overly wealthy or privileged.  The crux of her defense is that she is entitled to the same privacy as a private citizen.  But she’s not a private citizen is she?  She is a public member of the royal family.  In fact, she left in order to cash in on her status, and I truly believe she located to America to avoid paying double taxes on any income.  (More on this in a later post, but just know that COVID-19 has derailed those plans utterly.) She is a household name and is waging a very public publicity war with other members of the royal family.  

Further, how exactly is her funding going to prove that she is not wealthy or privileged?  I believe her team has just walked her into a trap.  We know from her Megxit deal that she and Harry enjoy millions of pounds in funding from Charles every year.  We know their security is paid for, and that they are safer than almost every Brit.  We also know that they can afford million-dollar homes in LA and they take private jets whenever the chance arises.  She is one of the most privileged and high-profiled women on Earth, and the tabloids know this.  How are they planning to spin all of this to make her out to be a regular Joe like the rest of us?  Further, how is publishing one letter going to cause her irreparable harm?  

I think this case will be a disaster for Meghan.  Plus, what was filed during a time when she and Harry were extremely popular and had a lot of good will is now resurfacing at the time when they have become the least relevant royals.  Hell, the Duke and Duchess of Gloucester have done more to help the UK during the pandemic than them.  (I like the Duke and Duchess of Gloucester; I just think they are very minor royals and likely retiring very soon.) 

Get ready Meghan.  I think the newspapers and truth, are going to win this one.  

General Data Protection Regulation found here: https://gdpr-info.eu/

European Convention on Human Rights found here: https://www.echr.coe.int/Documents/Convention_ENG.pdf