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Prince Harry; Phone hacking and privacy in the public eye

On Friday 15 December 2023 the High Court handed down its judgment in The Duke of Sussex & Ors v MGN Ltd [2023] EWHC 3217 (Ch). Two Claimants, including Prince Harry (the Duke), succeeded in their civil claims against the Defendant, Mirror Group News Ltd, (consisting of The Mirror, The Sunday Mirror and The People) (MGN). The Duke was awarded £140,600.00 and Coronation Street actor Michael Turner was awarded £31,650.00. The other two Claimants (Nikki Sanderson, fellow Coronation Street Actor, and Fiona Wightman) had their actions dismissed due to being brought out of time.

The claims related to allegations of phone hacking made against journalists, managers and editors working for MGN as well as by private investigators or agencies on their instructions. The four Claimants were selected as covering a range of “generic” issues which were also relevant to other claims against MGN.

This case highlights some key questions to consider when bringing claims for breach of privacy in the forms of phone hacking or other methods of unlawful information gathering, now or in the future. Further criminal action (called for by the Duke) has not yet been ruled out by Scotland Yard.

Legal principles

Article 8 of the Convention of Human Rights, as introduced into the law of England and Wales via the Human Rights Act 2000 (HRA 2000) which came into force on 2 October 2000, created a key right to respect for an individual’s private and family life. Events which occurred prior to the HRA 2000 becoming law cannot establish a cause of action, allowing a person to claim.

In delivering his judgment, Mr Justice Fancourt applied the two-stage test as established in Campbell v MGN Ltd [2004] 2 AC 457 by Lord Nicholls and confirmed by the Supreme Court in ZXC v Bloomberg LP [2022] 2 WLR 424. To consider whether there has been a misuse of private information the relevant test is:

  1. did the claimant have a reasonable expectation of privacy in the relevant information; and
  2. is this expectation outweighed by the countervailing interest of the publishers’ right to freedom of expression.

When considering branch (1), the “reasonable expectation” is the level of privacy that would be expected by a reasonable person in the same position as the claimant, with the same level of publicity and ordinary sensibilities.

Although not relevant to the Duke’s claims, the Limitation Act 1980 (LA 1980) was considered in relation to two of the other Claimants.

An action for breach of privacy must be brought within six years of when the cause of action accrued – s2 LA 1980. However, this may be extended by s 32 LA 1980, provided the claimant can show that they were unaware of the circumstances giving rise to their cause of action as a result of fraud, concealment or mistake. In such circumstances, the six year limitation period will commence when the claimant knew or could have known following reasonable due diligence that they had a worthwhile claim.

The claims

Each of the four Claimants complained of a number of articles, with a sample of 33 of the initial 148 articles published about the Duke being considered to ensure that the trial could be held within its seven week allocation. The sample was agreed by both the Duke and MGN, with some articles being favourable to either side’s case. The other three Claimants had their full list of articles considered.

Of the Duke’s 33 articles, Fancourt J found 15 to be the product of phone hacking, including voicemail interception, or other means of unlawful information gathering. The reasons for 18 of the articles not being found to show actionable misuse of private information include that the relevant publication:

  1. preceded the HRA 2000 entering into force;
  2. detailed events at a public venue, limiting the reasonableness by which privacy could be expected;
  3. followed an earlier brief/disclosure by a third party, so the information was already publicly available;
  4. contained information which had, or was likely to have had, a credible source; and/or
  5. contained information which was not disclosed, but would have been reasonable to infer from known information.

On one occasion, Fancourt J added that the publication complained of did contain information which would be expected to be private, but as that information was not the specific content which had been complained of by the Claimant there could not be a claim.

MGN sought to rely on a defence that it was in public interest to publish the content. It succeeded to an extent in respect of article 29 but the Court held that this defence did not extend to the Duke’s personal feelings about being unable to continue to serve in Afghanistan, which was the content complained of in that article.

With regards to limitation, MGN was successful in arguing that two of the Claimants were statute barred from bringing their claims. They had previously been put on notice that phone hacking was taking place, particularly in the light of the Leveson Inquiry finding that phone hacking was a widespread issue. In those circumstances, Fancourt J commented that “a reasonably attentive person” would take the time to find out whether it applied to them. The Claimants could not argue that they were naturally not curious, nor that a “hectic, busy and exhausting life” should detract from the normal standard of attentiveness.

The other Claimants’ actions also raised the issue of jurisdiction, where publication took place outside of England and Wales. In this instance, the breach of privacy was argued to be rooted in the phone hacking, not publication of the articles and so where they were published was not held to be relevant. The Court focused on where the phone hacking took place. The case highlights that actions which are taken outside of England and Wales cannot be actionable torts under English and Welsh law, unless the instruction to carry out the act came from within the jurisdiction.

Lessons to be learned

This case provides a helpful insight into what the Court considers to be an infringement on a person’s privacy, and what arguments may be made in defence of any publication made. It shows the dim light the Court will take when finding phone-hacking has taken place.

For claimants commencing an action, it is important to be specific about the content complained of in an article. In this example, Fancourt J had commented that one of the articles complained of was more likely than not to contain private information which had been obtained by unlawful means. However, as that was not the information complained of, no damages were awarded.

It is also important to consider the two-stage test for establishing privacy. If you are in a public setting, it is much less likely you can show a reasonable expectation of privacy. However, this is not entirely preventative, and an argument can be made that private conversations had during a public event should stay private, notwithstanding the setting.

With regards to jurisdiction, it must be shown that the actions constituting a breach of privacy took place within England and Wales, or were ordered from within the jurisdiction if they were carried out in another country.

Any action brought must be made within the relevant limitation period, being six years from the date from when the right of action accrued, or when the claimant should have first reasonably considered they could have a claim. In light of, Fancourt J’s comments in this case it would be very difficult to bring a claim for an action which took place prior to the events of the Leveson Inquiry. Fancourt J provided that the Inquiry would likely suffice to put a person on notice, making it would be very difficult for the claimant to show they could not reasonably have known they had a potential claim. This will, however, depend on the wider facts of the claim.

At Michelmores we have considerable experience advising clients in relation to both bringing and defending actions in privacy. If it would be helpful to discuss any of the issues raised in this article, please contact Jayne Clemens or your usual Michelmores contact.

[1] The Duke of Sussex & Ors v MGN Ltd [2023] EWHC 3217 (Ch)

[2] Campbell v MGN Ltd [2004] 2 AC 457

[3] ZXC v Bloomberg LP [2022] 2 WLR 424