October 26, 2021

How ‘Finding Freedom’ Could Sink Meghan Markle’s Court Case Against British Tabloid

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At several moments in the blockbuster new royal biography Finding Freedom, we are told what Harry and Meghan were thinking at precise moments in time; that Harry felt William’s use of the words “this girl” to describe Meghan was snobbish, or that Meghan “wondered if there wasn’t a message being sent” when Princess Michael wore a racially insensitive broach to the first big party that Meghan was invited to.

These are just two of examples of the many times this happens in the (unputdownable) book.

    There are also private conversations and detailed descriptions of moments only the two of them would have witnessed, such as Meghan “happily wandering into the woodland” to use the bathroom in Africa, or their private TV watching habits (Moana is a big favorite).

    Given that the granular level of detail on specific resentments and he-said-she-saids has not prompted any complaints from the increasingly litigious couple, we have to assume they see these accounts as accurate. 

    This has led to many commentators openly suggesting that Harry and Meghan are being somewhat evasive when they imply they didn’t brief (or cause to be briefed) the authors, Omid Scobie and Carolyn Durand, by declaring that they “were not interviewed and did not contribute” to Finding Freedom and that the book is the work of the authors’ “own independent reporting.”

    That message appeared to be undermined by a footnote in the back of the book in which the authors explain their processes, saying: “We have spoken with close friends of Harry and Meghan, royal aides and palace staff (past and present), the charities and organizations they have built long-lasting relationships with and, when appropriate, the couple themselves.”

    Scobie subsequently tweeted that he meant they had encountered them as part of their royal reporting work.

    Representatives for the Sussexes declined to comment to The Daily Beast when asked directly if the couple had authorized friends to speak to the writers of Finding Freedom.

    Why the silence? It is far from unusual for the subjects of royal biographies to give their friends consent to talk to biographers, especially if they think the writers might be friendly ones. Many extremely credible royal writers have benefited from such arrangements.

    A good part of the answer for their evasiveness in answering the question of authorization might lie in Meghan’s forthcoming privacy case against Associated Newspapers, the publishers of the Mail on Sunday, which promises to be a High Court showdown of Johnny Depp proportions.

    Harry and Meghan made it clear when they left the royal family that one of the reasons they were doing so was because they wanted to be out of the goldfish bowl of royal life, where they and their private lives were treated as public property.

    Indeed, Harry has said he suffers post-traumatic stress and panic attacks when confronted by banks of flashing photographers, and spoke of his hope for a more “peaceful” life when he and Meghan made their move to North America.

    Friends have repeatedly told The Daily Beast that they just want to be treated like other people, and allowed to get on with their lives without being constantly tailed and harassed by the media.

    To that end, they have recently acquired a new home in a secluded and very private part of Montecito, California, eliminated their social media presence, and stepped back from the visible front line of celebrity.

    All of this, many people would agree, would lead them to reasonably expect to enjoy a greater level of privacy than they did heretofore as they go about their daily business—even though, sadly for the couple, this has not been the case. They have been besieged by drones and paparazzi since moving to Los Angeles.

    Harry and Meghan’s critics, especially in the British press where they have few friends, are now arguing that if the couple have, as some allege, spent considerable time and energy organizing friends to brief Scobie and Durand—thereby deliberately putting themselves back in the limelight—they forfeit those privacy expectations.

    The Mail on Sunday has used a similar argument in its defense of Meghan’s court action. It has argued that it believes five of Meghan’s friends were authorized by her to speak to U.S. magazine People, and argues that by authorizing them to speak about a letter she wrote to her father, she effectively gave up her rights to privacy regarding that letter.

    Meghan has countered that she had no idea the five friends were speaking to the media.

    It has been reported that the Mail on Sunday’s legal team are now analyzing the book to determine whether it could be used to promote a narrative that Meghan allows friends to speak to the media on her behalf.

    Media lawyer Mark Stephens, of London law firm Howard Kennedy, told The Daily Beast that whether or not Meghan authorizes her friends to speak to the media or not is only “tangentially relevant” to the case. The real point is that, “Because Thomas Markle believes that  there was a curated attack against him using private information [the letter], he was entitled to use private information [the letter] to respond.

    It stress-tests the suggestion that her friends would speak to the media without any reference to her. It goes to her credibility.

    “But in cross-examination, you will get into how Meghan curates her reputation, and how those on her behalf curate her reputation. And as an example of that, she may be cross-examined on this: you have here a book that they denied was authorized, but they and their friends have apparently spoken to the authors.

    “It stress-tests the suggestion that her friends would speak to the media without any reference to her. It goes to her credibility.”

    However, David Banks, a media law consultant, said: “She may not have authorized the friends [to talk to People] but given her blessing to them co-operating with this biography. Giving approval to one doesn’t necessarily mean giving approval to the other. It’s not a certainty.

    “But how that plays out in the High Court, when it comes to the privacy action, you couldn’t predict. This is the skirmishing prior to the main event—a different picture often emerges in court.

    “But this is all stuff that will play into that hearing. You can see both sides arguing about what this means.”

    But will it be part of the case?

    “I would have thought so because it is about how much examination they allow of their private life,” said Banks. “If one could show that they were prepared to allow, or had given some degree of approval to this degree of examination of their private life, then there is an argument that they are putting themselves in the public domain.”

    But just because you allow photographers from Hello! to attend your wedding surely doesn’t mean that you are somehow implicitly giving consent for investigative reporters to rifle through your bins, does it? 

    “Courts are quite slow to say that just because a certain amount has been shared, because you’ve allowed this much, everything is fair game,” says Banks. “They tend to be a bit more measured than that. It doesn’t necessarily follow that because they have collaborated in this biography, her correspondence with her father somehow becomes allowable, that a daughter writing to her father becomes public property and examinable in this way.”

    Asked if it was likely that lawyers for Associated Newspapers would now be poring through the book figuring out if they could turn it to their advantage in court, the retired star libel lawyer David Hooper, author of the seminal tomes Public Scandal, Odium and Contempt and Reputations Under Fire, told The Daily Beast: “It would make a lot of sense for them to do that. It all goes to reasonable expectation of privacy.

    The insane thing about this whole case is that even if they win, they lose, because Meghan and her witnesses face probably five days of cross-examination in the witness box.

    “If Meghan had basically had a private moaning session to her friends over dinner in which she mentioned the letter, well, OK, you can do that and you are still entitled to your privacy. You can talk about very private things, such as a letter to your father, with your friends, that you might not talk to the world at large about and still expect that to remain private. But if you are getting people to speak about these matters on your behalf or if you talk to the authors that is very different. Do they have a reasonable expectation of privacy if they are, for example, briefing, via friends, the authors of this book?”

    But, Hooper said, the bigger problem is that coming out of the experience overall smelling of roses looks tough for Meghan and Harry: “The insane thing about this whole case is that even if they win, they lose, because Meghan and her witnesses face probably five days of cross-examination in the witness box.”

    This has always been the ultimate threat that newspapers hold: even if you beat us, the whole experience will be so unpleasant, embarrassing and draining that it’s not worth the candle. 

    The royals have generally agreed. Shrug and move on was the standard operating procedure.

    But friends of Harry and Meghan have made clear that for them, the case against Associated Newspapers is a vital matter of principle. It’s about using their wealth to stand up to bullies. If they can’t, they reason, who will? 

    This post originally appeared on and written by:
    Tom Sykes
    The Daily Beast 2020-08-14 08:38:00