How Meghan Markle's Privacy Lawsuit Legacy Could Go up in Smoke

Meghan Markle's legacy from her privacy victory over a U.K. tabloid could be undermined due to a move by the Government to give freedom of speech "trump card" status.

The Duchess of Sussex sued The Mail on Sunday for breach of privacy and copyright after the newspaper printed substantial extracts from a letter she sent her father Thomas Markle.

After winning, in December 2021, she declared the case was "precedent setting," suggesting the judge's ruling had moved the dial for the rights of those taking on the media in Britain.

Meghan said in a statement at the time released to Newsweek: "This is a victory not just for me, but for anyone who has ever felt scared to stand up for what's right.

"While this win is precedent setting, what matters most is that we are now collectively brave enough to reshape a tabloid industry that conditions people to be cruel, and profits from the lies and pain that they create."

However, the first signs the U.K. government might not see the issue the same way came when the Prime Minister's spokesman said in December that Boris Johnson believed in a free press, and that Downing Street would study the implications of the judgement carefully, as reported by The Independent.

Now, Dominic Raab, the justice secretary, has confirmed long-discussed plans to replace the Human Rights Act, under which Meghan brought the privacy aspect of her case, with a British Bill of Rights.

While Meghan's victory is likely safe, any precedent it created may go up in smoke if the law on which it is based is replaced.

In an exclusive interview with the Daily Mail, Raab said: "Effectively, free speech will be given what will amount to 'trump card' status in a whole range of areas.

"I feel very strongly that the parameters of free speech and democratic debate are being whittled away, whether by the privacy issue or whether it's wokery and political correctness. I worry about those parameters of free speech being narrowed."

He added: "The thrust is going to be making sure that when we balance rights, whether it's the right to free speech and the right to privacy or other rights, we make sure that the greatest overriding importance and weight is attached to free speech."

Raab gave his March 25 exclusive to the daily sister title of the same Sunday newspaper Meghan sued, and his reference to the balancing act between free speech and privacy speaks to the specific issues in the court case.

Meghan was first handed victory at the High Court, in London, in February 2021, but The Mail on Sunday appealed, arguing the judge failed to conduct this balancing exercise correctly.

However, the Court of Appeal upheld the original decision in a judgement seen by Newsweek, which read: "The Court of Appeal upheld the judge's decision that the Duchess had a reasonable expectation of privacy in the contents of the letter and those contents were personal, private and not matters of legitimate public interest.

"The articles in The Mail on Sunday interfered with the Duchess' reasonable expectation of privacy and were not a justified or proportionate means of correcting inaccuracies about the letter that had been contained in an article published on February 6 in People magazine in the United States."

The duchess had been given a quick win, known as summary judgement, without the need for a bruising, messy trial or disclosure of her private messages.

However, some in the legal profession thought the court made the wrong decision in terms of key democratic issues.

Matthew Dando, of U.K. law firm Wiggin LLP, told i News at the time: "It is astonishing that the High Court felt able to give judgment without even hearing key evidence regarding the preparation of the Duchess' letter and its intended audience.

"By doing so, the Court elevated the Duchess' privacy rights over matters of public interest and freedom of expression.

"It is a cornerstone of our adversarial justice system that evidence is tested at trial."

Any change to the law will be unlikely to effect the case already won for Meghan but there may further legal battles ahead.

Prince Harry is currently himself suing The Mail on Sunday, although for libel rather than privacy, and it is his second lawsuit against the newspaper.