Duchess of Sussex v Associated Newspapers Ltd

Reference: [2021] EWHC 273 (Ch)

Court: High Court, Chancery Division, Business and Property Courts, Intellectual Property List

Judge: Warby J

Date of judgment: 11 Feb 2021

Summary: Misuse of private information-breach of copyright-summary judgment and/or strike out of defence

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Appearances: Justin Rushbrooke QC - Leading Counsel (Claimant)  Jane Phillips (Claimant)  Alexandra Marzec - Leading Counsel (Defendant)  Gervase de Wilde (Defendant) 

Instructing Solicitors: Schillings International LLP (Claimant); Reynolds Porter Chamberlain LLP (Defendant)

Facts

On 9 February 2019, in the hard copy edition of the Mail on Sunday and on MailOnline, the Defendant published large parts of a letter (the Letter) the Claimant had sent to her father in late August 2018, a few months after her wedding to Prince Harry. The Letter had been referred to in an article in the US magazine People on 6 February 2019 and the Claimant’s father, Thomas Markle, had subsequently given a copy of the letter to the Defendant for publication. The Defendant quoted extensively from the Letter in five articles spread across a number of pages.

The Claimant issued proceedings for misuse of her private information, breach of her data protection rights, and infringement of her copyright in the Letter and of a draft of the letter she had created on her phone (the Electronic Draft).

The Defendant denied that the Letter was private or confidential or that the Claimant had any reasonable expectation of privacy in respect of it. It also alleged that any privacy interest the Claimant enjoyed was slight, and outweighed by the need to protect the rights of her father and the public at large. The Defendant relied, among other things, on allegations that the Claimant intended the letter to be publicised, and had disclosed information about it to “best friends” and/or to the authors of a biography of the Duke and Duchess of Sussex (not published until 18 months after the Defendant’s articles) entitled “Finding Freedom”. In relation to the copyright claim, the Defendant took issue with the Claimant’s case on originality, on subsistence of copyright, on ownership, and on infringement, alternatively relying on defences of fair dealing and public interest.

The Claimant applied to strike out the defences to the claim for misuse of private information and/or for summary judgment on that claim and on the claim for copyright infringement. The hearing did not concern the data protection claim.

Issue

  1. Whether, applying the well-known two-stage test, the Defendant had misused the Claimant’s private information.
  2. Whether in relation to the copyright claim:
    a.     The Claimant was the sole author of the Electronic Draft;
    b.     if, and to what extent, the Electronic Draft was an original work, such that copyright subsisted in it;
    c.     There had been infringement of the Claimant’s copyright.
  3. Whether the defence to the privacy claim should be struck out and/or summary judgment should be given in relation to either or both of the above issues.

Held

Misuse of private information
1. Liability was determined by applying a two-stage test. At stage one the question was whether the Claimant enjoyed a reasonable expectation of privacy in respect of the information in question. At stage two, the question was whether in all the circumstances the privacy rights of the Claimant had to yield to the imperatives of the freedom of expression enjoyed by publishers and their audiences (see paras 29-31 of Judgment).
2. None of the contents of the Letter had entered the public domain by the time of the publications complained of. The People Article had disclosed the existence of the Letter, and provided a broad description, but not its detailed contents (para. 68)
3. There was no room for serious debate about some aspects of the Murray factors, objectively assessed (para. 69).
4. The Claimant had a reasonable expectation that the contents of the Letter would remain private. The Mail Articles interfered with that reasonable expectation. The only tenable justification for any such interference was to correct some inaccuracies about the Letter contained in the People Article. However, the level of inaccuracy had been considerably overstated by the Defendant, and, taken as a whole, the disclosures were manifestly excessive and hence unlawful. There was no prospect that a different judgment would be reached after a trial. The interference with freedom of expression was a necessary and proportionate means of pursuing the legitimate aim of protecting the Claimant’s privacy (para. 128).
5. There was no useful purpose in striking out any of the defence. There were parts of it that might be relevant to damages, and the work involved in filleting would be disproportionate to the gains. Since there were compelling reasons why the issue of liability should not go to trial, summary judgment would be granted (para.128).

Infringement of copyright
6. There was no prospect of the court concluding that the Electronic Draft was to any extent a purely mechanical exercise in reciting bald historical facts. It was, and would inevitably be, held to be the product of intellectual creativity sufficient to render it original in the relevant sense and to confer copyright on its author or authors (paras. 139, 149).
7. The defences of fair dealing and public interest could not succeed (paras. 153 and 158).
8. Accordingly, the Claimant was entitled to summary judgment on the issues of subsistence and infringement.
9. The Claimant was bound to prove that she was the, or an, owner of the, or a, copyright in the literary form of the electronic draft which copyright was infringed by the defendant, and the defences advanced would be bound to fail (para.169).
10. The Defendant’s case that the Claimant was not the sole author of the Electronic Draft or the Letter was improbable, but would be allowed to go forward to trial. The Defendant would be directed to serve a formal notice of its case as to copyright ownership on each person that it maintained was entitled to copyright, notifying them that they were entitled to apply to be joined to the proceedings (paras. 165, 170).

Comment

This is  a relatively rare example of the Court being willing to enter summary judgment in both a claim for misuse of private information and breach of copyright, where defences were being advanced which the Defendant alleged should be decided at trial.
The case contains an exposition of the law of privacy and in particular, is one of the very few reported cases in this jurisdiction concerning this area of the law as it relates to a private letter and the meaning of “correspondence” in Article 8 of the ECHR.
In addition, it indicates that an intention not to disclose private information is not an essential ingredient of the cause of action, highlighting the level of control that a person may be entitled to exercise over the dissemination of their own private information.