LONDON — When Meghan, Duchess of Sussex, won her long-running legal battle against the publisher of the Mail on Sunday, she hailed it as “a victory not just for me, but for anyone who has ever felt scared to stand up for what’s right.”
The headline-grabbing paltry sum, however, is not the whole story, and Meghan will be receiving much more from the tabloid — but for violation of her copyright rather than privacy.
Last month, the duchess won her dispute with the Mail on Sunday, which in 2019 published parts of a “personal and private” handwritten letter she penned to her dad after her wedding to Prince Harry. That letter pleaded with her estranged father to stop talking to the tabloids, saying “you have broken my heart into a million pieces.”
A written court order by appeal judges, dated Dec. 16 and seen by The Washington Post, details some of the financial settlement. It says that, by Friday, the duchess is to receive “£1 by way of nominal damages for misuse of private information.”
But the court added that a “confidential sum agreed between the parties” will be paid by the tabloid’s publisher for copyright infringement. That secret sum could be quite high, legal observers say.
Meghan’s side insists that overall payout was much more than “just £1.” A spokeswoman for the duchess told The Post the publisher agreed to pay a “substantial” sum for copyright infringement and that this will be donated to charity. The Mail will also be on the hook for paying Meghan’s legal fees — which are estimated to exceed $2 million.
Legal observers say that by publishing a personal letter without permission, the Mail on Sunday had a losing case. And while the result does not appear to set any legal precedent, Meghan’s victory nonetheless puts down a cultural marker in the battle between Team Sussex and the British tabloids.
The duchess sued — and the duchess won.
Last month, the Mail on Sunday said it would not appeal the latest judgment against it. It also agreed to Meghan’s demand that it print a front-page admission, which it did, on Dec. 26, Boxing Day, traditionally one of the slower news days of the year.
“The Duchess of Sussex wins her legal case for copyright infringement against Associated Newspapers for articles published in The Mail on Sunday and posted on Mail Online — SEE PAGE 3,” read the statement.
“The Meghan Markle court victory was not that legally significant. The Mail on Sunday litigated a weak case and they lost it, without even managing to get to trial,” said David Allen Green, a legal commentator and a lawyer at Preiskel & Co in London.
Green said he assumed that the senior editors would have been advised against publication of Meghan’s letter to her father — “the Mail on Sunday have very good lawyers,” he said. “But they chose to publish anyway, knowing the legal risks.”
If the case sets no legal precedent, Green said, it has “immense cultural and media significance.”
The newspaper chose to fight a weak case, despite the legal problems. “This could only be because they had a nonlegal objective,” Green said. “But also important was that Markle decided to press her case, instead of letting it go like other royals would have done. In this way, the case could be a turning point.”
Analysts said that for the payout, Meghan’s team would have sought to recoup the profits that the tabloid made from printing her letter, which violated her copyright.
Hashim Mude, a visiting lecturer in media law at City, University of London, said that to come up with that figure, the Mail on Sunday would have had to provide “accurate financial information as to how much it made from the infringing material.”
To try to get at that number, it could have included an “audited schedule of receipts, how many physical copies of the newspaper were sold, what was the overall profit generated from the infringing material and the costs incurred in generating that profit,” he said.
Mark Stephens, a media lawyer at the London-based Howard Kennedy firm, said that during trials, expert evidence can be sought over how much the infringing material helped boost sales, although this case did not go to trial.
But he said that a number would still be generated “forensically” or simply “dealt with by sticking a thumb in the air” and landing on a figure to which both parties agree. He guessed it would be north of $100,000.
“It looks as if they weighed up their options, and then decided that an account of profits in the copyright is going to give her more money than the invasion of privacy,” Stephens said.
Damages awarded in Britain involving high-profile figures taking on media outlets — and winning — vary widely, but they generally are not the eye-popping sums posted in some cases in America.
In a truly outstanding case, pro wrestler Hulk Hogan, whose real name is Terry Bollea, sued the online news and gossip site Gawker in a sex tape lawsuit. A Florida jury awarded him a whopping $140 million, an unusually high sum for privacy cases. Gawker later settled with Hogan for $31 million. The media company filed for bankruptcy.
Back in the U.K., the British supermodel Naomi Campbell, for example, won a breach of confidentiality lawsuit against the Daily Mirror for publishing a report on her struggle with drug addiction, which included a photograph of her leaving a Narcotics Anonymous meeting. The High Court order, which was later upheld by the House of Lords, found that even celebrities have some rights to privacy, and ordered the Mirror to pay her just $4,700.
The sums awarded in British cases are usually dwarfed by legal fees, which can easily balloon into the hundreds of thousands. Meghan is set to receive £300,000 ($406,000) in legal fees by Friday, according to a court order, an installment for what could be a much larger figure. In England, the default is for the loser’s side to pay a substantial portion of the winner’s legal fees, which in this case is estimated to be over $2 million.
Paul Farhi in Washington contributed to this report.