HRH The Duchess of Sussex v Associated Newspapers Limited

Where a claimant has a reasonable expectation of privacy in a private letter, the court must balance that right against freedom of expression by examining the comparative importance of the particular rights, their justifications and proportionality. A public figure’s prior publicity on other matters does not remove privacy from detailed personal correspondence.

Correcting an inaccurate published account may justify a limited response. It does not justify extensive publication of the letter where the extracts are largely irrelevant to that purpose and are used chiefly to reveal its contents. Copying substantial, important and unpublished literary content for that purpose is not fair dealing for reporting current events, nor will freedom of expression ordinarily override copyright outside the rare cases identified in authority.

The claimant sent a five-page handwritten letter to her father after her wedding. Following a People magazine article which inaccurately described the letter as a conciliatory attempt to repair their relationship, the defendant published about half of it in articles in the Mail on Sunday and MailOnline.

Mr Justice Warby granted summary judgment for the claimant for misuse of private information and, subsequently, copyright infringement. The defendant appealed, contending that further evidence was needed, that the father had a broader right to answer the People article, and that publication was protected by article 10 and fair dealing for reporting current events.

The central issue was whether the first-instance judge was entitled summarily to hold that the extensive disclosures were disproportionate and that the copyright defences had no real prospect of success.

1. Appeal dismissed. The court admitted the parties’ further evidence pragmatically, but held that it did not bear materially on the appeal. It did not alter the fact that the detailed contents of the letter had not entered the public domain before the defendant’s articles.

2. The claimant had a reasonable expectation of privacy in the detailed contents of the personal letter. The first-instance judge correctly applied the broad, objective assessment associated with the Murray factors. The letter concerned family life and personal feelings, was sent privately to a single recipient, and had not been published. Knowledge that the recipient might leak it, or a willingness to permit limited disclosure to authors, did not destroy that expectation.

3. At the balancing stage, the first-instance judge applied the correct approach in Campbell and Re S. His shorthand reference to publication being “necessary and proportionate” meant justified; it did not impose an independent burden on the publisher or give priority to article 8 over article 10.

4. The inaccurate description of the letter in the People article could justify limited corrective publication. It could not justify publishing extensive verbatim extracts without approaching the claimant. The defendant’s articles principally revealed the contents of a private letter rather than answered the alleged attack on the father. Their disclosure was manifestly excessive and disproportionate.

5. The copyright defences also failed summarily. The defendant knowingly copied a large and important part of an unpublished literary work. The copying was principally to report the letter’s contents, not current events, and was unfair. This was not a rare case in which article 10 or public interest overrode copyright.

• Court of Appeal (Civil Division): Dismissed the defendant’s appeals and upheld summary judgment for the claimant for misuse of private information and copyright infringement: [2021] EWCA Civ 1810.
• High Court, Intellectual Property List: Mr Justice Warby granted summary judgment on misuse of private information and on subsistence and infringement of copyright on 11 February 2021. After the possible co-author disclaimed any copyright, he gave final summary judgment on copyright on 12 May 2021.