Forcing the Duchess of Sussex to make public the identities of her five friends who gave an anonymous interview to a US magazine is “an unacceptable price to pay” for pursuing her legal action against a British newspaper, the High Court has been told.
Meghan is suing Associated Newspapers Limited (ANL), publisher of the Mail on Sunday and MailOnline, over an article which reproduced parts of a handwritten letter sent by her to Thomas Markle, 76, in August 2018.
The duchess’s legal team was at the High Court in London on Wednesday in a bid to keep the identities of the friends, who gave an interview to People magazine in February last year, secret in reports of the proceedings.
In the People article, the friends spoke out against the bullying Meghan said she has faced, and have only been identified in confidential court documents.
The duchess, 38, says her friends gave the interview without her knowledge, and denies a claim made by ANL that she “caused or permitted” the People article to be published.
In court documents for the hearing, before Mr Justice Warby, Meghan’s lawyers argued that the friends – referred to as A to E – have a right to anonymity both as confidential journalistic sources and under their own privacy rights.
Justin Rushbrooke QC, representing the duchess, said in written submissions to the court: “To force the claimant, as the defendant urges this court to do, to disclose their identities to the public at this stage would be to exact an unacceptably high price for pursuing her claim for invasion of privacy against the defendant in respect of its disclosure of the letter.
“On her case, which will be tried in due course, the defendant has been guilty of a flagrant and unjustified intrusion into her private and family life.
“Given the close factual nexus between the letter and the events leading up to the defendant’s decision to publish its contents, it would be a cruel irony were she required to pay that price before her claim has even been determined.”
Mr Rushbrooke added: “The friends are not parties to this action, but unwilling participants.
“At this early stage of the litigation it cannot be said with certainty that they would be witnesses at the trial.”
He told the court that ANL’s case is that Meghan had “compromised” her friends’ right to privacy “by putting their names into a public court document”.
He said: “We say, on any analysis, that is actually a grotesque perversion of what’s actually happened.”
Mr Rushbrooke added: “It is bad enough that the position was taken in correspondence, but it is disappointing to see it persisted with in written submissions (by ANL) put before the court.”
He continued: “The true position is, let there be no doubt about it, that the claimant has done nothing of the sort. It was the defendant who made the interviews with People relevant.
“It was the defendant who forced the claimant to identify the names of the five friends in a court document by serving a request for further information that required those names to be given and, for her part, we submit that the claimant has done what she reasonably and sensibly could to protect their confidentiality and privacy rights.”
Meghan’s lawyers also argue that Associated Newspapers has “already demonstrated a willingness to publish articles” based on the contents of court documents.
Mr Rushbrooke added: “There can be little doubt that, in addition to defending this case through the courts, the defendant is seeking to maximise the publicity surrounding this case, which it has repeatedly dubbed ‘the trial of the century’.”
ANL’s lawyers are resisting the application to keep the identities of Meghan’s friends secret, claiming the duchess’s friends brought the letter into the public domain when it was referred to for the first time in the People interview.
In written submissions, Antony White QC, acting for ANL, said: “The friends are important potential witnesses on a key issue.
“Reporting these matters without referring to names would be a heavy curtailment of the media’s and the defendant’s entitlement to report this case and the public’s right to know about it.
“No friend’s oral evidence could be fully and properly reported because full reporting might identify her, especially as there has already been media speculation as to their identities.”
Mr White also said the present order sought by the duchess’s lawyers would leave Meghan entitled to disclose the identities to anyone – including the media – who could publish it, while ANL’s titles would remain barred from doing so.
In a witness statement submitted as part of the application, Meghan said: “Associated Newspapers, the owner of the Daily Mail and the Mail on Sunday, is threatening to publish the names of five women – five private citizens – who made a choice on their own to speak anonymously with a US media outlet more than a year ago, to defend me from the bullying behaviour of Britain’s tabloid media.
“These five women are not on trial, and nor am I. The publisher of the Mail on Sunday is the one on trial. It is this publisher that acted unlawfully and is attempting to evade accountability, to create a circus and distract from the point of this case – that the Mail on Sunday unlawfully published my private letter.
“Each of these women is a private citizen, young mother, and each has a basic right to privacy.”
Meghan is suing ANL over five articles, two in the Mail on Sunday and three on MailOnline, which were published in February 2019 and reproduced parts of a handwritten letter she sent to her father in August 2018.
The headline on the article read: “Revealed: The letter showing true tragedy of Meghan’s rift with a father she says has ‘broken her heart into a million pieces’.”
The duchess – who announced the launch of the legal action in October last year – is seeking damages from ANL, the newspaper’s publisher and operator of the website, for alleged misuse of private information, copyright infringement and breach of the Data Protection Act.
ANL wholly denies the allegations, particularly the duchess’s claim that the letter was edited in any way that changed its meaning, and says it will hotly contest the case.