Ashdown v Telegraph Group Ltd

Copyright ordinarily protects an author’s form of expression rather than the underlying information. Freedom of expression will therefore rarely justify copying another’s words.

Exceptionally, the public interest may require publication of the words themselves. Courts must then apply the Copyright, Designs and Patents Act 1988, including its fair-dealing and public-interest provisions, compatibly with article 10. The public-interest defence preserved by section 171(3) is not confined to works involving illegality, immorality or turpitude.

Fair dealing is assessed as a matter of fact, degree and impression. Commercial competition, prior non-publication or breach of confidence, and the amount and importance copied are particularly significant. Public interest remains paramount, but extensive quotation is unfair where brief extracts would establish authenticity.

A confidential minute prepared by Paddy Ashdown recorded a meeting with the Prime Minister and other political figures concerning possible co-operation between the Labour Party and the Liberal Democrats. The Sunday Telegraph obtained the minute without authority and published substantial verbatim extracts. Mr Ashdown claimed breach of confidence and copyright infringement.

On an application for summary judgment, the Vice-Chancellor held that the newspaper had infringed copyright and granted a final injunction: [2001] 2 WLR 967. The newspaper appealed. It relied on fair dealing under sections 30(1) and 30(2), the public-interest defence preserved by section 171(3), and freedom of expression under article 10 as given effect by the Human Rights Act 1998.

The central questions were how article 10 affected copyright protection, whether the statutory and common-law defences accommodated freedom of expression, and whether the newspaper had a realistic prospect of establishing a defence.

1. Appeal dismissed unanimously. The joint judgment held that the newspaper had no realistic prospect of establishing fair dealing or a public-interest defence. The Vice-Chancellor’s summary judgment for copyright infringement therefore stood.

2. Copyright protects the form of a literary work rather than the information it conveys. Preventing another person from using an author’s precise words will not ordinarily impair freedom of expression significantly. Nevertheless, rare cases may arise in which effective exercise of article 10 requires publication of the words or document itself.

3. In those rare cases, the court must, so far as it can, apply the Copyright, Designs and Patents Act 1988 compatibly with freedom of expression. Refusal of an injunction will usually provide sufficient accommodation. Freedom of expression does not normally entitle a publisher to exploit another’s work without compensating the copyright owner or accounting for profits.

4. The public-interest defence preserved by section 171(3) was not confined to enforcement founded on illegality, immorality or material which reeked of turpitude. The court disapproved that narrow approach in Hyde Park Residence Ltd v Yelland [2001] Ch 143 and preferred the view that the circumstances in which public interest overrides copyright cannot be precisely categorised. The defence remains exceptional.

5. Section 30(1) did not apply. The newspaper criticised the political conduct described in the minute, rather than criticising or reviewing the copyright work itself.

6. For section 30(2), “reporting current events” should receive a liberal interpretation. A two-year-old political meeting could arguably remain of current public interest. Fair dealing, however, remained a question of fact, degree and impression, informed principally by commercial competition, prior publication or confidentiality, and the amount and importance taken. Those factors all favoured the copyright owner.

7. Article 10 did not alter the result. A statement that the newspaper possessed the authentic minute, supported by one or two short extracts, would have sufficed. The extensive selection of colourful passages principally enhanced the article’s journalistic and commercial appeal. Article 10 did not arguably require that use to be free of compensation.

8. Section 12 of the Human Rights Act 1998 underlined the need to consider contexts in which freedom of expression receives particular weight. It did not automatically assign that right additional weight. No separate challenge was made to the injunction, so its discretionary grant was not determined on appeal.

1. Court of Appeal: The appeal was dismissed unanimously. The court upheld summary judgment for copyright infringement and left the final injunction undisturbed: [2001] EWCA Civ 1142. Permission to appeal to the House of Lords was refused.

2. High Court, Chancery Division: The Vice-Chancellor granted Mr Ashdown summary judgment, a final injunction against further infringement, and disclosure enabling an election between damages and an account of profits: [2001] 2 WLR 967.