How will Meghan Markle’s court victory affect press freedom?

The fact the court gave such weight to Meghan’s expectation of privacy at all reflects a broader shift in the way people try to suppress reporting they dislike, writes Jasper Jackson

Some will warn the ruling in favour of the Duchess of Sussex marks a blow for press freedom (PA)

Neither the Duchess of Sussex nor the Mail on Sunday has come out of their latest legal battle smelling of roses, but the Mail’s court defeat over the leaked letter from Meghan Markle to her father is a reminder of bigger threats to freedom of speech.

On the duchess’s part, the admission that she had shown her draft of the letter to her and Prince Harry’s communications chief seemed to undermine claims she expected its contents to remain private. She had told Jason Knauf: “Everything I have drafted is with the understanding that it could be leaked, so I have been meticulous in my word choice.”

Any claim to an “expectation of privacy” also wasn’t helped by her apology for misleading the court because she had forgotten ever approving briefings to the authors of a biography about her, Finding Freedom.

On the Mail’s side, its argument that it was entirely justified in releasing large portions of the letter in order to counter unflattering reports about Thomas Markle’s behaviour rings rather hollow. It is difficult to imagine the newspaper’s main interest was the protection of Thomas Markle’s good name, rather than the sales and clicks that come with virtually any salacious story about the royals.

There will inevitably be grave warnings that this ruling marks a blow for press freedom, allowing the rich and powerful to cover up their bad behaviour by pleading invasion of privacy. But the reasons the Mail lost have done little damage to the crucial public interest defence for journalism. The court decided that it might have been “proportionate to publish a very small part of the letter” to balance other reports on Thomas Markle, but not “half the letter”. The court may have decided in favour of privacy, but it weighed it equally against the public’s right to know.

And yet, the fact the court gave such weight to Meghan’s expectation of privacy at all reflects a broader shift in the way people, many far less savoury than the duchess, try to suppress reporting they dislike.

Companies and powerful individuals are rapidly turning to laws on data protection, privacy and confidentiality as a way to prevent their dirty secrets from being exposed. And this isn’t the kind of gossip that made up the bulk of stories illegally sourced by phone hacking at the News of the World. It’s bad, sometimes criminal, behaviour that does real damage to real people.

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As it happens, even as the court ruled in favour of the Duchess of Sussex, another less glamorous but more significant case is working its way through the Supreme Court. ZXC vs Bloomberg is being fought over reports about a criminal investigation into a businessman that was based on confidential documents.

It has spooked lawyers working for media organisations because previous hearings have effectively seen judges downgrade the importance of the public interest in reporting allegations of wrongdoing when balanced against a right to privacy. If the Supreme Court upholds those previous rulings, our precedent-based legal system will have made it far more tricky for journalists to use confidential documents and communications, even if they reveal serious wrongdoing.

It’s not as captivating as “Tabloid vs Duchess”, but the case will play a crucial role in deciding where we draw the line between privacy and the public’s right to know. If we’re not careful, laws designed to stop unnecessary and damaging breaches of privacy will simply protect those with something nasty to hide.