The case of HRH Duchess of Sussex v Associated Newspapers Ltd rumbles on. The latest development unfolded in the Court of Appeal where Associated Newspaper’s (AN) appeal against the previous summary judgment awarded in the Duchess’ favour failed. This failure was ultimately because the Court took the view that:
“Whilst it might have been proportionate to disclose and publish a very small part of the Letter to rebut inaccuracies in the People Article, it was not necessary to deploy half the contents of the Letter as Associated Newspapers did.”
The case centres around the publication of a letter sent by the Duchess to her father, Mr Markle, in August 2018 (the Letter). The purpose of the Letter, as explained by the Duchess, was to reprimand Mr Markle for his previous behaviour and as an attempt to persuade him not to talk to the press in the future.
The Letter was not an olive branch as had been widely and incorrectly reported. The existence of the Letter first became public in February 2019, when it was mentioned in an article by the US magazine People.
The dispute between the Duchess and AN arose after AN were provided with a full copy of the Letter by the Duchess. AN then used the Letter as the basis for multiple articles which extensively quoted the Letter. The Duchess’s position was that AN had misused her private information and infringed upon her copyright, a position with which the High Court agreed.
AN was granted permission to appeal the summary judgement and that was the matter before the Court most recently. AN’s appeal relied on several supposedly novel features of the facts, as summarised very briefly by Sir Geoffrey Vos, Master of the Rolls:
As to the misuse of information:
i) the judge failed to make findings on the factors relied on as undermining or diminishing the weight of the Duchess’s privacy right;
ii) the judge wrongly thought that the Duchess’s disclosures of the Letter to People magazine and the authors of Finding Freedom (the Book) were relevant only to the issue of public domain, and not to her conduct and ambivalence;
iii) the judge failed to recognise that the Duchess’s disclosures to People magazine and the Book and her intentions in relation to disclosing the Letter were relevant to the assessment of the Murray factors (taken from Murray v. Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481 at [36]) at stage one;
iv) the judge gave inadequate weight to the Article 10 rights engaged, and assessed them on an overly restrictive basis, especially in relation to reply to attack;
v) the judge failed to attach sufficient significance to the prospect that Associated Newspapers’ pleaded case would be made good at trial; and
vi) the judge wrongly assessed what further evidence was likely to be available at trial.
As to the infringement of copyright
(i) the judge failed properly to evaluate the interference with article 10, saying that this was not one of the rare cases in which freedom of expression would outweigh copyright in the absence of a fair dealing defence; and
(ii) the judge failed properly to evaluate the fair dealing defence, bearing in mind the limited scope of the copyright in the Letter and the wide scope of the concept of reporting current events.
Prior to the hearing both partis sought to adduce new evidence. In particular, a statement from Mr Jason Knauf, a former member of the Kensington Palace Communications Team exhibiting texts that passed between himself, Prince Harry and the Duchess. The content of those texts revolved around the drafting of the Letter and what the Duchess knew about discussions between the Kensington Palace Communications Team and the Authors of the Book. All new evidence was admitted.
A very brief summary of the Court’s conclusion:
i) The Judge had not failed to recognise the significance and importance of the People magazine article’s attack on Mr Markle and had not overlooked the thrust of that article.
ii) The Judge had not adopted a flawed analysis of the factors undermining the Duchess’s reasonable expectation of privacy
iii) The Judge had not wrongly suggested that AN had to justify an interference with the Duchess’s right of privacy, or wrongly applied a strict test of necessity and proportionality to Mr Markle’s right of reply.
iv) In relation to copyright, the Judge did not fail to properly to evaluate the interference with article 10 and had not wrongly relied on his privacy analysis to reject the fair dealing defence.
This only goes to to show how strongly Copyright Protection is dealt with by the Courts while underlining how careful the media must be in publishing articles of this nature using private information.
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