Associated Newspapers Ltd v HRH Prince of Wales

Where private information has been obtained through a known breach of confidence, the proportionality exercise between privacy and freedom of expression must give substantial weight to the public interest in maintaining duties of confidence. The question is not merely whether the information interests the public. It is whether, in all the circumstances, publication in breach of confidence serves the public interest.

Information may remain confidential and private although it concerns public events, has been shared with selected recipients, or its subject is a public figure. The public and political significance of the information ordinarily falls to be assessed when balancing Article 8 and Article 10 rights. Fair dealing for reporting current events does not protect copying selected to report the revelation of an unpublished journal itself.

The newspaper published substantial extracts from a handwritten journal recording the Prince of Wales’s personal impressions during a 1993 visit to Hong Kong. A former employee had supplied copies to the newspaper in breach of express and relational duties of confidence. The Prince claimed breach of confidence, misuse of private information, and copyright infringement.

Blackburne J granted summary judgment concerning the Hong Kong journal: [2006] EWHC 522 (Ch). The newspaper appealed, contending that factual disputes required trial, that the journal was neither confidential nor private, that publication was justified by freedom of expression, and that statutory copyright defences applied.

The central issue was how Article 8 and Article 10 should be balanced where private information was knowingly received in breach of confidence.

1. Appeal dismissed. There was no factual issue requiring a trial. It was appropriate to determine the substantive merits on the facts that were undisputed or assumed in the newspaper’s favour.

2. The journal was both confidential and private. It contained personal views and impressions written in the Prince’s own hand. It had been circulated only to selected recipients under conditions of confidence. Its references to public events did not place the author’s comments upon those events in the public domain. Neither the breadth of confidential circulation nor earlier authorised access to other journals displaced a reasonable expectation of privacy.

3. The court distinguished the question whether information attracts protection from the later balancing exercise. A public figure’s conduct, public statements and political views may bear on the weight of Article 10, but they do not of themselves prevent the information from being confidential or private. Publication interfered with the Prince’s Article 8 rights.

4. In a claim involving information received in confidence, the balance is not confined to Article 8 and Article 10 considered without context. Article 10(2) expressly recognises prevention of disclosure of confidential information as a legitimate basis for restricting expression. The court must ask whether, having regard to the information and all relevant circumstances, it is in the public interest that the duty of confidence be breached. The relationship of confidence, and where applicable an express contractual obligation, are significant factors.

5. The public-interest contribution of the published extracts to debate about the Prince’s political conduct or his absence from Chinese state banquets was minimal. The intrusion into his private space, combined with the knowing breach of an employee’s duty of confidence, outweighed any interference with the newspaper’s Article 10 rights. The privacy claim was therefore unanswerable and the confidence claim stronger still.

6. The copyright defences failed. Under Copyright, Designs and Patents Act 1988 section 30(2), the extracts were selected to report the revelation of the journal rather than current events, and the dealing was not fair. Section 30(1) could not be engaged by treating the same unprotected publication as having made the journal available to the public.

• Court of Appeal (Civil Division): Dismissed the newspaper’s appeal and upheld summary judgment for the Prince in respect of the Hong Kong journal.

• High Court, Chancery Division: Blackburne J granted summary judgment on 17 March 2006 in respect of part of the claims for breach of confidence and copyright infringement: [2006] EWHC 522 (Ch).