Judge rules front page Mail on Sunday apology can be smaller than Duchess of Sussex demanded

Meghan, Duchess of Sussex in Cape Town, South Africa, September 25, 2019 -  REUTERS
Meghan, Duchess of Sussex in Cape Town, South Africa, September 25, 2019 - REUTERS

The Duchess of Sussex’s bid to have a front page statement about her legal victory against the Mail on Sunday published in the same size font as the original story has been rejected after the newspaper argued it would be a "vastly disproportionate interference" with its right to freedom of expression.

Lord Justice Warby, sitting at the High Court, said the agreed statement was five times longer than the headline used when the newspaper first published extracts of a letter Meghan sent to her father, making the two “not really comparable.”

He also rejected the Duchess’s bid for the same notice to be published on MailOnline for six months, ruling instead that it should be on the home page for 24 hours and a news page for six days following.

He said her demand for it to be published in a “prominent position” was not suitably precise or necessary.

The judge also rejected the Duchess’s argument that there should be “no further delay” in the publication after she claimed she had been forced to wait long enough and should have certainty.

He noted that it was not “red-hot news of a perishable kind” and granted a “stay” of the order, pending an appeal.

Lord Justice Warby (pitcured below) made an unprecedented order last month for the Mail on Sunday to publish a front page statement declaring that it had “infringed her copyright” by publishing parts of a “personal and private” letter to her estranged father, Thomas Markle.

Lord Justice Warby
Lord Justice Warby

It was believed to be the first time a judge had demanded such a declaration and was described by media lawyers as “extraordinary” and "troubling."

The Duchess, 39, sued Associated Newspapers over the publication of five articles that reproduced extracts of the five-page handwritten letter.

She was last month granted a summary judgment, a legal step that saw the privacy claim and the bulk of the copyright claim resolved in her favour without trial.

The Duchess’s lawyers sought an order requiring Associated to publish a statement about the copyright win on the front page of the Mail On Sunday and the home page of MailOnline “to act as a deterrent to future infringers”.

Lord Justice Warby agreed, ruling that the newspaper must carry a statement that gave similar prominence to the original story.

He ordered that an 86-word notice must also be printed “above the fold” on page three stating that it had “infringed her copyright” by publishing parts of the letter.

The judge accepted that such an order represented an “interference with freedom of expression” that needed legal justification but said the “plain and obvious” aim was to protect and vindicate the Duchess’s civil rights.

Associated argued that rather than publishing the statement in the same size font as the original headline, it should be allowed to run it along the bottom of the page as a sub-banner in a smaller font, due to the number of words.

It said the Duchess’s proposals “would represent a disproportionate amount of the front page and a vastly disproportionate interference” with its freedom of expression rights.

Meghan’s riposte, the judge noted, was that this was a problem of its own making.

Duke and Duchess of Sussex  - PA
Duke and Duchess of Sussex - PA

But he accepted the thrust of Associated’s submissions, stating: “The statement is much longer than the front page trailer was; it contains five times as many words. So, the two are not really comparable.

“If the statement was printed in the same font as the trailer it would consume a much much greater proportion of the front page, becoming the main story of the day, or significantly downgrading the news story.”

He added: “The purposes for which I have decided to make a publication order are not compelling enough to justify an interference of the scale or nature described by the defendant.”

Having seen a mock-up of the proposed front page with a sub-banner, he said he considered it “sufficiently prominent and eye-catching”.

Lord Justice Warby refused Associated’s application to appeal the publication order but granted a “stay” of the order “only until the matter has been decided by the Court of Appeal”.

He said the stay would expire on April 6, to give the company time to apply directly to the appeal court.

Associated will also appeal the wider ruling handed down last month.