HRH The Duchess of Sussex v Associated Newspapers Limited

The Court of Appeal dismissed the publisher’s appeal against summary judgment in favour of the Duchess on claims for misuse of private information and copyright infringement. The court confirmed the two-stage privacy framework: (1) whether the claimant had a reasonable expectation of privacy (applying the Murray factors), and (2) whether that expectation should yield to Article 10 rights after a proportionality balancing exercise. The judge at first instance had correctly found that the handwritten five‑page letter sent by the Duchess to her father was private, sent for a single addressee, and not in the public domain when the Mail on Sunday and MailOnline published extensive extracts. The publisher’s principal justifications — that the letter was necessary to rebut the People magazine article and to vindicate the father’s reputation — did not justify publication of large parts of the letter: limited, proportionate rebuttal or summary would have sufficed. The judge was also correct to reject the defendant’s fair dealing and public interest copyright defences because the copying was substantial, the work was unpublished, and the use was disproportionate to any reporting purpose.

The Duchess brought proceedings alleging misuse of private information and copyright infringement arising from the publication by Associated Newspapers of substantial extracts of a five‑page handwritten letter she had sent to her father, Thomas Markle. At first instance Mr Justice Warby granted summary judgment for the Duchess on both causes of action. Associated Newspapers appealed.

Background and procedural posture:

• The letter was sent by courier to the father on 27 August 2018; the People magazine article of 6 February 2019 had published a description of the letter and asserted it was an olive branch; the Mail on Sunday and MailOnline published large extracts on 10 February 2019.
• The High Court (Warby J) found the letter’s contents private and protected by Article 8, and that publication of extensive verbatim extracts was neither necessary nor proportionate to correct the People article. The judge also held the Duchess held copyright in the letter and that Associated Newspapers had infringed it; the fair dealing and public interest defences failed.
• The defendant appealed to the Court of Appeal, advancing grounds including alleged flaws in the judge’s application of the Article 8/Article 10 balance, treatment of the father’s right of reply, assessment of the claimant’s conduct (disclosures to friends, to the authors of a later book, and to People magazine), and rejection of fair dealing/public interest defences in copyright.

Issues framed by the court:

• Whether the judge correctly applied the threshold of reasonable expectation of privacy (stage one).
• Whether, at stage two, the judge correctly balanced the claimant’s privacy rights against the publisher’s and the father’s Article 10 rights and properly assessed necessity and proportionality, in particular concerning a right of public reply to the People article.
• Whether the judge correctly rejected the defendant’s fair dealing defence and public interest argument under the Copyright, Designs and Patents Act 1988 (including section 171(3)).
• Whether new evidence should be admitted on appeal and whether it raised triable issues.

Court’s reasoning and conclusions:

• The court admitted the new evidence for pragmatic reasons but found it of little relevance to the narrow issues on appeal. The judge had analysed the Murray factors thoroughly and correctly concluded the Duchess had a reasonable expectation of privacy in the letter: it was personal family correspondence addressed to one recipient and not in the public domain prior to the defendant’s publications.
• The judge did not misunderstand the People article or the nature of the father’s grievances; he considered whether publishing extensive verbatim extracts of the letter was necessary or proportionate to correct inaccuracies. He concluded it was not. The appropriate, proportionate response would have been a limited rebuttal or a summary, not wholesale publication of private correspondence.
• The balancing exercise was properly conducted; although both Article 8 and Article 10 are engaged, neither has precedence and the judge applied the correct approach. His use of the word "necessary" was in the sense of justified and proportionate; he did not impose an impermissible burden on the defendant.
• On copyright, the court agreed the defendant had reproduced a substantial part of an unpublished work and that the fair dealing and public interest exceptions did not apply: the taking was disproportionate, and this was not one of the rare cases where Article 10 overrides copyright.

Result: the Court of Appeal dismissed the appeal, upholding the grant of summary judgment for the Duchess on misuse of private information and copyright infringement.

Appeal dismissed. The Court of Appeal upheld the first‑instance summary judgments: the Duchess had a reasonable expectation of privacy in the handwritten letter and publication of extensive verbatim extracts by Associated Newspapers was not a necessary or proportionate response to the People magazine article; likewise, the defendant’s fair dealing and public interest copyright defences had no real prospect of success because the copying was substantial, the work unpublished, and the use disproportionate.

Appeal to the Court of Appeal (Civil Division) from the High Court of Justice, Business and Property Courts of England and Wales, Intellectual Property List (Warby J). First-instance summary judgment was given by Warby J (judgment delivered 11 February 2021) with final summary judgment on copyright delivered 12 May 2021; appeal heard in the Court of Appeal and determined by Sir Geoffrey Vos MR, Dame Victoria Sharp and Bean LJ, judgment 2 December 2021. Neutral citation of this appeal: [2021] EWCA Civ 1810.