Full case report

HRH The Prince of Wales v Associated Newspapers Ltd (No 3)

Reference [2006] EWHC 522 (Ch); [2008] EMLR 66
Court High Court, Chancery Division

Judge Blackburne J

Date of Judgment 17 Mar 2006


Summary

Breach of Confidence – Privacy – Copyright – Public Interest – Fair Dealing – Summary Judgment – CPR Part 24 – Injunction – Delivery Up – Damages


Facts

D published extracts from a journal written by C about his official visit to Hong Kong in 1997 which it had obtained from a confidential source, together with 7 other journals. C complained of breach of confidence and copyright, and applied for summary judgment in respect of all 8 journals. D opposed the application on the grounds that there were a number of triable issues and summary judgment was inappropriate in a case which raised novel issues in a developing area of the law. D argued that the C had not treated his journals as secret and what it published was political speech relating to the views of an heir to the throne, who had departed from constitutional convention by involvement in politics. D submitted, in view of this: (1) C had no reasonable expectation of privacy and/or (2) his privacy claims should yield to the public interest in freedom of expression on political issues; (3) there had been fair dealing with the copyright material for the purpose of criticism/review.


Issue

(1) whether the C had a reasonable expectation of privacy in relation to the journals;
(2) if so, whether the balance between the Article 8 and Article 10 interests at stake favoured the C or the D;
(3) whether D had arguable defences of fair dealing and/or public interest to the copyright claim.


Held

Granting summary judgment in respect of the Hong Kong Journal only and ordering a trial in respect of the other 7 journals: (1) C had a reasonable expectation of privacy in respect of the HK Journal. Distinguishing A v B, C & D, this was not a case where the C had opened up the relevant zone of his life to public scrutiny.
(2) the contribution made by the HK Journal to public debate was minimal. Balancing C’s Art 8 rights with D’s Art 10 rights, the disclosures were not necessary in a democratic society.
(3) fair dealing (reporting current events) did not apply. The use was not fair as there had been commercial use of the most colourful passages of the journal.
(4) D’s use did amount to criticism & review but s.30(1) CDPA 1988 did not apply as the journal had not been published.
(5) it would arguably be an illegitimate curtailment of D’s Art 10 rights to grant an injunction and delivery up.


Comment

The limits of the public interest defence in the area of confidence, privacy and copyright is a difficult topic. The cross-analysis between the Prince’s Article 8 rights and the newspaper’s Article 10 rights led to the Court rejecting the public interest arguments of the newspaper. However, public interest in this sphere, given the Prince’s role and his previous statements, is perhaps worthy of a more detailed analysis than is possible on a summary judgment application. In particular, the treatment of the “zone of privacy” argument (from A v B, C & D), in light of the Prince’s pronouncements, receives very little attention or analysis in the judgment.


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Instructing Solicitors

Harbottle & Lewis for the Claimant; Reynolds Porter Chamberlain for the Defendant