Ashdown v Telegraph Group Ltd
Reference:  EWCA Civ 1142;  4 All ER 666;  3 WLR 1368
Court: Court of Appeal
Judge: Lord Phillips MR, Robert Walker & Keene LJJ
Date of judgment: 18 Jul 2001
Summary: Intellectual property - Copyright - Fair Dealing- ss.30 & 171(3) Copyright Designs & Patents Act 1988 - Public Interest - European Convention on Human Rights - Article 10 - Summary Judgment - CPR Part 24
Instructing Solicitors: Bates Wells & Braithwaite for the Respondent; Olswang for the Appellant
The Sunday Telegraph had published verbatim extracts from a lengthy minute of a meeting between Lord Ashdown, the Prime Minister and other political figures. The extracts contradicted denials emanating from Downing Street of stories in other newspapers concerning the extent of planned co-operation between New Labour and the Liberal Democrats. Lord Ashdown was intending to publish the diaries of which the minute formed part. Although the newspaper did not pay to publish the extracts, the editor of the Sunday Telegraph had clearly understood that the minute was confidential. The Claimant brought proceedings for breach of copyright and breach of confidence. He applied under Part 24 for summary judgment on the copyright claim. The Vice-Chancellor granted the application and ordered disclosure so that the Claimant could elect between an account of profits or damages. The Defendant appealed.
(1) Whether there was a fair-dealing defence under s.30; (2) Whether there could be a public interest defence; (3) Whether summary judgment was properly granted.
(1) The Defendants could not avail themselves of a s.30 defence because they could not bring themselves within any of its parameters. (2) The Court would recognise a separate public interest defence in an appropriate case, but it was not necessary for the Defendants in this case to have made such liberal use of the copyright material. (3) The judge had been correct to grant summary judgment.
Although the appeal was ultimately dismissed, the judgment is important for establishing that Article 10 considerations might, in an appropriate case, require the Court to grant a public interest defence beyond the protection offered under s.30 of the Act for fair dealing. The Court disagreed with Aldous LJ’s decision in Hyde Park Residence Ltd v Yelland  Ch 143;  3 WLR 215;  EMLR 363;  RPC 604 that the CDPA 1988 represented a comprehensive code which had performed the balancing process between competing rights of property interests and freedom of expression leaving no room for a free-standing defence of public interest. There would be cases – albeit this was not one – where the republication of the form would be as, if not more, important than the contents. The traditional view of copyright meant that whilst the latter would be permissible, the former would lead a publisher into copyright difficulties given the particular limits of the s.30 defence.