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14 December 2022

 Harry and Meghan are contradicting themselves on privacy law

Once Netflix is invited into your lives, it's harder to claim newspapers shouldn't be.

By David Banks

At first glance, sharing the most intimate aspects of your personal lives with millions of Netflix viewers appears to be an unusual way of protecting your privacy.

But as we have come to realise with anything involving the Royal Family in recent years, it’s not that simple. A nation that can love and respect the Queen, while wondering “what the hell” about Prince Andrew, is accustomed to the contradictions that the monarchy can throw at us. Given how the media pursued his mother, it is absolutely understandable that Prince Harry wants to protect his family from that sort of attention. It’s therefore not a surprise that the couple have gone to the courts to do just that.

Some of the intrusions have been unarguably egregious and have resulted in expensive judgements or settlements in their favour, such as the helicopter flight by a picture agency that led the Sussexes to flee their Costwold home over security fears. The publication of a private letter to Meghan’s father resulted in a double-whammy court action for breach of privacy and breach of copyright by the Duchess against the Mail on Sunday and MailOnline. And when not in court, Prince Harry has used Ipso, the UK press regulator, to protect his privacy when the MailOnline published intrusive photos of him in swimming trunks taken on a private beach in Jamaica.

The couple clearly care about privacy, and are prepared to take action to protect it. There is nothing wrong with that: many public figures do the same. But it has made them vulnerable to criticism now that they have invited the documentary-makers of Netflix into their lives to talk about their relationship and what happened to them since they met in 2016.

They have responded to this in a statement: “The Duke and Duchess have never cited privacy as the reason for stepping back… This distorted narrative was intended to trap the couple into silence.” And they’re right, up to a point. They have a right to tell their story, on their terms, having had it mediated by so many others over recent years.

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But if they want to protect their privacy, the decision to share so much of their lives in this documentary may be one they come to regret. Privacy only works if you can claim that you have a reasonable expectation of privacy in respect of that aspect of your life. If you are in your own home, or on a private beach, most of us would agree you do have that reasonable expectation.

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However, once you have shared aspects of your relationships with your spouse, your wider family or your friends, you have opened the door to closer examination. It becomes much harder to claim that reasonable expectation when Netflix have been allowed in.

But more than that, the Sussexes might find they have effectively invited a response from those who have another version of this story to tell. Recollections differ, and some of the people mentioned by the Duke and Duchess in this documentary might have a different story to tell. Previously publication of such differing accounts might have been prevented by the prospect of a privacy action – now such a threat has diminished by the Sussexes placing these matters in the public domain.

Those different accounts, it would seem, are unlikely to come publicly from Harry’s brother or father. For the moment, at least, they appear to be adhering to the maxim “never complain, never explain”. The same cannot be said for others who might now feel emboldened to share their recollections of this turbulent episode in the history of the Royal Family.

[See also: We’ve given Prince Harry no choice but to sell his story again and again]

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