Misuse of private information and copyright infringement: summary judgment

Background

Everyone has the right to respect for his private and family life, his home and his correspondence (Article 8, European Convention for the Protection of Human Rights) (ECHR) (Article 8). This must be balanced with the right to freedom of expression. (Article 10, ECHR).

Misuse of private information arises where a person has a reasonable expectation of privacy.

Facts 

M sent her father, T, a five-page letter. The existence of the letter first became public when mentioned in an article in the US magazine People. T then provided the newspaper publisher, A, with the letter. Large parts of the letter were subsequently published by A in The Mail on Sunday and MailOnline in hard copy and online. 

M issued proceedings against A, claiming that the publication of the articles amounted to a misuse of her private information and infringed her copyright in the letter. M applied to strike out A’s defences to her claim for misuse of private information, and for summary judgment in her favour on both claims.

A argued that the contents of the letter were not private or confidential as alleged, and that M had no reasonable expectation of privacy. A also argued that any privacy interest she enjoyed was outweighed by the need to protect the rights of T and the public at large. 

A's case on the non-existence or weakening of M's rights of privacy relied on allegations that she intended the letter to be publicised, and to that end disclosed information about it to five friends, comments from whom regarding the letter and T’s response were published in the article published in People magazine, and also to the authors of a biography of M.

A challenged M's case on originality, subsistence of copyright, ownership and infringement, and relied on defences of fair dealing and public interest. In relation to ownership and authorship, A argued that M involved members of the palace communications team in the writing of the letter, and that their input might have generated a separate copyright, possibly Crown copyright.

Decision

The court granted M's applications for summary judgment on liability in relation to her claims for misuse of private information, subsistence of copyright and copyright infringement. It did not strike out A’s defence as parts of it might be relevant to damages.

A further hearing would be needed on the remaining issue in the copyright claim to determine whether M was the sole author of the letter and sole owner of the copyright in it.

M enjoyed a reasonable expectation of privacy in respect of the information and would be bound to win at trial on this issue. None of the detailed contents of the letter had entered the public domain by the time of the publication. The MailOnline articles stated that they revealed the contents of the letter for the first time. The People article had disclosed the existence of the letter, and provided a broad description, but not its detailed contents.

M is a prominent member of the Royal Family and so is a public figure about whom much had been written and published. She has to accept a greater degree of intrusion than others, but a public figure does not give up her right to a private life or open every aspect of her private and family life or correspondence to examination in the press. M’s relationship with her father was not without qualification a matter of public interest.

The letter clearly fell within Article 8 as correspondence that contained matter relating to the family life of M and T. The letter's purpose was to explain how M saw T's behaviour and its effect on her, and to express her feelings about that. T's right to tell his own life story was not unqualified and did not defeat or override M's presumptive right to keep the contents of her letter private. M’s right did not significantly impinge on T's entitlement to give his own account of events in his own life. It only restricted his right to use the contents of the unpublished letter as a means of doing so. 

The court rejected A’s argument that M had no expectation of privacy because she knew, or believed, T was likely to disclose the contents of the letter to third parties or the media. M had a right to expect T to keep the contents of the letter private. A high level of risk-taking might affect the assessment of damages but does not excuse an intrusion into privacy. The fact that under US law the publication of the existence and contents of the letter is lawful did not assist A. 

The intrusion involved the publication of the information in the letter by way of sensational revelations in a popular newspaper and online, to a very large readership. M had not caused or permitted information about the existence of the letter and a description of its contents to enter the public domain by authorising or acquiescing in its disclosure. Disclosure of information about the existence of the letter and a description of its contents is not the same as disclosure of the detailed content.

Balancing the competing rights to privacy and freedom of expression, M's status as a public figure did not outweigh the M's privacy interest in the contents of the letter. Prior publication about the letter's existence and nature could weaken that interest, as might an intention to make public the same information at some stage. A person actively seeking the limelight might have a correspondingly reduced expectation of privacy, but what was alleged here could not be regarded as a factual case capable of showing that the disclosures complained of contributed to a debate of general interest. The purpose of publication of the letter was to satisfy public curiosity about M’s private life and did not contribute to a debate of public interest.

Copyright subsisted in the letter. It was inevitably the product of sufficient intellectual creativity to render it original and to confer copyright on its author. A’s MailOnline articles reproduced a substantial part of the content of the letter. The extracts selected for publication were the prominent parts. M was entitled to summary judgment on the issues of copyright subsistence and infringement.

Comment

This decision considers the relevance of M having allegedly put certain private facts in the public domain in relation to the information alleged to be private, as well as M’s alleged intention to publish the information or to use if for public relations or media strategy purposes. The decision also considers the extent to which a person to whom a letter has been sent has a right to disclose that letter, including to set the record straight. The court clearly supported M’s right to decide whether, when, how and to what extent to publish the contents of a private letter. M’s successful use of the summary judgment procedure in this context is also noteworthy.

Case:  HRH Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch).

First published in the April 2021 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscriptions enquires 020 7202 1200