This blog post has been contributed by Professor Jonathan Griffiths, Module Convenor for Intellectual Property.

There has been extensive media coverage of the Court of Appeal’s Judgment in HRH Duchess of Sussex v Associated Newspapers Ltd.See here and here for some examples of coverage and here for the Court of Appeal’s Judgment itself. [If you would like to watch the proceedings before the Court of Appeal, see here.]

The claim was brought by the Duchess of Sussex (Meghan Markle) over the Mail on Sunday’s publication of long extracts from a letter that she had written to her father (Thomas Markle) shortly before her wedding to the Duke of Sussex. In the letter, the claimant had remonstrated with her father about his contacts with tabloid newspapers. Unhappy with the publication of extensive extracts from her private correspondence, the claimant brought proceedings against the newspaper group responsible for The Mail on Sunday in both misuse of personal information (see section 5.1.1 of the Module Guide) and infringement of copyright (see Chapters 6-8, and particularly section 8.4 of the Module Guide). In the High Court, Warby J awarded summary judgment to the claimant in both causes of action.

Misuse of personal information

In misuse of personal information, he applied the two-stage test endorsed in Campbell v MGN Ltd [2004] 2 AC 457 and Re S [2005] 1 AC 593. At the first stage, employing the Murray factors (see Murray v Express Newspapers plc [2008] EWCA Civ 446), he held that the claimant had had a reasonable expectation of privacy in the letter. The detailed contents of the letter were not in the public domain, they concerned private matters and disclosure of the letter was likely to cause distress to her. The fact that the claimant had disclosed private information in other contexts did not materially weaken the privacy claim in relation to the specific private information contained in the letter.

At the second step of the enquiry, the Court had to consider whether, in all the circumstances of the case, the claimant’s privacy rights had to yield to the rights of freedom of expression enjoyed by the publisher of the newspaper and its audience. This step required the Court to balance the competing rights, with an “intense focus” on the specific circumstances and particular facts of the case. Warby J noted that publications that aimed solely to satisfy the curiosity of readers did not contribute to debate in the general interest and suggested that the strongest aspect of the defendant’s argument at this stage relied on the alleged need to publish extracts from the letter in order to correct a misleading impression about the letter’s contents arising as a consequence of the publication of a separate article in the United States. However, even from this perspective, the publication of such a large proportion of the letter by the Mail on Sunday represented a clearly disproportionate interference with the claimant’s right to a private life.

Infringement of copyright

On copyright, the defendant disputed the originality and authorship of the claimant’s letter. However, these arguments were relatively easily disposed of by the judge and discussion focused predominantly on the potential application of certain defences to the claim for infringement of copyright. These were (i) the permitted act of fair dealing with a copyright work for the purpose of reporting current events under CDPA 1988 and (ii) the residual “public interest” principle preserved under CDPA s 171(3). On s 30(2), Warby J held that the newspaper’s reproduction of the letter was essentially for the purpose of reporting the contents of the letter, which was not a current event, and the use it made of the letter was not “fair” (because a disproportionately large section of the unpublished letter had been reproduced).

Under s 171(3), he considered the leading Judgment of the Court of Appeal in Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142 and concluded that this was not one of the rare situations in which the application of the right to freedom of expression required publication to be permitted even though the publication was not covered by any of the statutory permitted acts under the CDPA.

Court of Appeal

The defendant appealed to the Court of Appeal, claiming that the Judge had approached the task of balancing the competing claims of claimant and defendant incorrectly and, on the specific facts of the case, had not given sufficient weight to the right of freedom of expression. However, the Court of Appeal considered that the award of summary judgment by Warby J had been entirely appropriate. His approach to the claim of misuse of personal information had been entirely in line with that approved in Campbell, Re S and Murray (and in two more recent cases, ZXC v Bloomberg LP [2020] EWCA Civ 611 and Sicri v Associated Newspapers Ltd [2020] EWHC 3541 (QBD)).In the claim for copyright infringement, the Judge had not erred from established principle.

Conclusion

The Duchess of Sussex’s claim has received very significant media attention. However, ultimately, both the High Court and the Court of Appeal viewed the case as pretty straightforward. The relatively slight interest in countering a misleading impression of the letter’s contents was strongly outweighed by the claimant’s interests in privacy and protection of copyright. While it might have been proportionate to publish a small part of the letter, it had been entirely unnecessary to publish such a large portion of the letter in the pages of the Mail on Sunday. The consequences of the loss of this case by the newspaper group are discussed here and here.

For a student of intellectual property law, the case provides an interesting opportunity to test your understanding of the application of the causes of action at issue and, while it does not generally establish significant new principles of law, it may have developed the law of copyright in one small respect.

The Judgment of the Court of Appeal appears to recognise the degree of originality of a work as a factor to be taken into account in deciding whether a particular dealing with a work is “fair” under CDPA 1988, s 30(2). This seems sensible, as it recognises that the strength of a copyright claim may vary significantly from case to case (from a security video, for example, at one end of the spectrum, to a symphony or major novel, at the other). Nevertheless, the degree of originality has not previously been identified as a relevant factor in determining fairness in the case law on fair dealing (see the leading case of Ashdown, for example). In this small way, then, HRH Duchess of Sussex v Associated Newspapers Ltd may prove to have continuing legal significance.