HRH the Prince of Wales v Associated Newspapers Ltd.

A private journal may retain confidential status even when it records public events and political impressions, is circulated to selected recipients, and concerns a public figure. The threshold is whether the claimant had a reasonable expectation of privacy. If so, the court must balance the claimant’s Article 8 rights against the publisher’s Article 10 rights, without giving either automatic precedence. Public interest must be distinguished from material that merely interests the public.

Copyright in an unpublished literary work is not conditional on an intention to exploit it commercially. Fair dealing and public-interest defences require careful examination of the purpose, extent and circumstances of copying. Summary judgment may be given where the relevant facts and published material permit the court to resolve those issues without a trial.

The claimant sought summary judgment for breach of confidence and copyright infringement arising from publication of extracts from his Hong Kong journal in the defendant’s newspaper. He also sought relief concerning seven other overseas-tour journals retained by the defendant.

The defendant argued that the material concerned public events and political matters, lacked confidentiality, was justified by public interest and freedom of expression, and was protected by copyright exceptions. The central issues were whether the claimant had a reasonable expectation of privacy, whether publication was proportionate under Articles 8 and 10, and whether the copyright defences had a real prospect of success.

1. Hong Kong journal—confidence. The claimant had a reasonable expectation of privacy in his impressions and reflections, notwithstanding that the journal described public events, was circulated to selected recipients and was not highly intimate. The selected circulation, envelopes marked “Private and Confidential” and duties owed by staff supported confidentiality. The defendant’s copies had been obtained through a breach of confidence.
2. The Article 8 and Article 10 rights required a parallel proportionality analysis. Neither right had precedence. The alleged public-interest justification made only a minimal contribution to informing debate about lobbying, constitutional conduct or the claimant’s absence from Chinese banquets. The disclosures were therefore not necessary in a democratic society, and the claimant’s confidentiality claim succeeded.
3. Other journals. The evidence established a reasonable expectation of privacy in principle, but the court had not seen their contents or assessed their circulation. It was therefore inappropriate on summary judgment to grant a permanent injunction restraining publication or disclosure. Those confidence claims were left for trial.
4. Copyright. The journals were original literary works. Under sections 9(1) and 11(1) of the Copyright, Designs and Patents Act 1988, the claimant was their author and first owner. Section 163 did not apply because he was neither an officer or servant of the Crown in the relevant sense nor writing in the course of his duties.
5. The newspaper’s verbatim extracts formed a qualitatively substantial part of the Hong Kong journal. The fair-dealing defences under sections 30(1) and 30(2) had no real prospect of success: the work had not been made available to the public, the copying followed a breach of confidence, and the articles principally reported the revelation of the journal rather than current events. The wider public-interest defence under section 171(3) likewise had no real prospect.
6. The claimant was entitled to an inquiry as to damages, an injunction against further copyright infringement and delivery up of infringing copies concerning the Hong Kong journal. Copyright relief concerning the other seven journals remained to be determined at trial.

First-instance decision. No prior appellate decision is stated in the judgment.