In August 2018, the Duchess of Sussex wrote a letter to her father. This letter first became public when it was mentioned in an article in the US magazine People. In February 2019, the Mail on Sunday and MailOnline published an article containing the letter. The Duchess of Sussex then brought an action against the defendant publisher of the Mail on Sunday and MailOnline. The claim alleged that this publication constituted 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 created on her phone (the “Electronic Draft”).
Following a hearing in January 2021, the High Court has given judgment on the claimant’s application for orders striking out part of the Defence and entering summary judgment in her favour on her claims for misuse of private information and copyright infringement. A hearing to decide matters consequential on this judgment, and directions for the next steps is fixed for 2 March 2021.
Regarding the misuse of private information claim, the Court held that the claimant had a reasonable expectation that the contents of the letter would remain private. The Mail Articles interfered with that reasonable expectation. The claimant’s prior disclosure of a description of the letter and her intention to publish it might (if made out at trial) reduce the weight of her Article 8 rights, but even taking the defendant’s case at its highest the outcome of the balancing exercise was clear. The only tenable justification for any such interference was to correct some inaccuracies about the letter contained in the People Article. However, overall the disclosures were manifestly excessive and hence unlawful. The interference with freedom of expression which those conclusions represent is a necessary and proportionate means of pursuing the legitimate aim of protecting the claimant’s privacy. However, the Court sees no useful purpose in striking out any of the Defence parts of which may be relevant to quantum. There is no good reason not to enter summary judgment on liability; there are compelling reasons not to allow this aspect of the case to go to trial.
Regarding the copyright claim, the Court held that the Electronic Draft is 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. This copyright was infringed and the defence of fair dealing for reporting current events could not succeed. Furthermore, there is no basis on which the court could conclude that, although the copying was not fair dealing, the public interest required the copyright to be overridden. However, there should be a trial limited to issues relating to the ownership of copyright.
Antony White QC was involved in this case.