Duchess wins in Privacy and Copyright claim against Associated Newspapers

The Background

The Duchess of Sussex, Meghan Markle, sued Associated Newspapers Ltd (ANL) for breach of privacy and copyright infringement after ANL had published extracts from a letter the Duchess wrote to her father in 2018.

In February 2021, the High Court granted summary judgment in favour of Meghan – which meant there was no need for a trial and the judge was satisfied that ANL’s defence had no reasonable prospect of success. ANL appealed that decision, and the case was heard in the Court of Appeal (CoA) in November 2021, where the High Court’s summary judgment decision was upheld.

This article will primarily focus on the copyright aspect of the claim which has implications for those involved in all forms of news media.

Copyright

The main copyright issues in the recent case included whether:

• Meghan was the sole author or was co-author to the letter.
• To what extent the letter was an original copyright work.
• ANL infringed the copyright in the letter.
• ANL were able to rely on the fair dealing and public interest defences.

The court concluded that the letter was an expression of the author’s intellectual creativity, therefore copyright would subsist in it. It was also held that ANL had copied the letter by publishing a substantial part. In terms of who owned the copyright in the letter, ANL had put forward that Jason Knauf, former communications secretary to the Sussexes, was a co-author in the letter meaning the Crown might own a share in any copyright. This was rejected based on the evidence being weak. ANL’s defence of fair dealing and public interest also failed, which will be discussed further below.

ANL’s defence arguments

ANL attempted to rely on the copyright exception ‘fair dealing’ for the purposes of reporting current events. This was rejected as 1) publishing the letter did not report current events and 2) the use made of the letter was not fair – ANL used a substantial amount of the letter and published an unpublished work.

ANL also put forward the public interest defence. This defence is used in rare circumstances and, if successful, would allow a defendant to rely on the protection of freedom of speech under Article 10 of the European Convention of Human Rights (ECHR). An important factor here is that the fair dealing exception will itself reflect the public interest in freedom of expression. Therefore, by rejecting the fair dealing point, the public interest defence had little chance of succeeding – and it was in fact rejected.

Comment

Fair dealing is the go-to exception journalists will generally seek to rely on when using copyright protected works for the purpose of reporting current events. In this case, the fact the letter was unpublished (before being reproduced and published by ANL) and that a substantial amount of the letter was taken, contributed to the defence failing.

As the decision interestingly showed, both fair dealing and the public interest defences are intertwined. If the former fails, the likelihood is that the latter will also fail.

Having lost its appeal, ANL will now be contemplating whether to appeal once more to the Supreme Court.

Written by Saad Khan, Paralegal