HRH The Duchess of Sussex v Associated Newspapers Ltd

Personal correspondence about private and family life is presumptively private. Public status, previous publicity about related matters, a recipient’s propensity to disclose, or an intention to publish later does not by itself extinguish that protection. Publication intended to correct a misleading account must be relevant, necessary and proportionate to that purpose.

A literary work is original where its author exercised expressive and creative choices. Factual narrative and admonitory content may satisfy that standard. Substantiality depends on the quality of the material copied. Extensive reproduction of the work’s principal themes and most striking expression is substantial. Fair dealing and public interest cannot justify copying which is excessive and largely unrelated to a legitimate reporting purpose.

The claimant sent her father a private five-page letter concerning their relationship, his dealings with the media and her resulting feelings. After an article in People magazine described the correspondence inaccurately, her father supplied the Letter to the defendant. The defendant published five articles reproducing extensive extracts, accompanied by his responses and, online, a handwriting-based personality analysis.

The claimant sought summary judgment on misuse of private information and copyright infringement. The defendant relied principally on the claimant’s public status, alleged prior or intended publicity, correction of the public record, fair dealing, public interest and possible contributions to the Letter by a royal communications adviser. The central questions were whether any realistic defence remained to privacy liability, copyright subsistence and infringement, and whether authorship and ownership required a trial.

1. Misuse of private information. Summary judgment was entered for the claimant. The Letter concerned private and family life and correspondence. Its detailed contents had not entered the public domain. The claimant’s public status, disclosures about related matters, her father’s propensity to engage with the press, the position under United States law and any possible intention to publish later could not deprive her of a reasonable expectation of privacy.
2. The People article inaccurately portrayed the purpose and some wording of the Letter. This justified proportionate steps to correct the record. Applying Articles 8 and 10 of the European Convention, however, the bulk publication was largely irrelevant to that aim and manifestly excessive. Editorial latitude did not justify extensive quotation without prior contact with the claimant. Publication of most of paragraph 15 could legitimately correct the suggestion that the Letter was an olive branch, but disclosure of the remaining material was neither necessary nor proportionate. The handwriting analysis had no rational connection with correcting the record.
3. Copyright subsistence and infringement. The Electronic Draft was an original literary work. Originality required expressive and creative choices producing the author’s own intellectual creation. A work did not lose originality merely because it narrated facts or admonished its recipient. The articles reproduced a substantial part because they took the work’s principal themes and most striking expression. Substantiality was qualitative, not merely quantitative.
4. The fair-dealing defence failed except in relation to most of paragraph 15. The defendant knowingly used an unpublished work, copied a large and important part, infringed privacy and employed most of the material for no legitimate reporting purpose. Nor was this one of the rare cases in which public interest or Article 10 displaced copyright.
5. A trial remained necessary on the limited questions whether the claimant was sole author, whether an adviser was a co-author and how any co-authorship affected the extent of infringement and remedies. Those uncertainties did not prevent summary judgment that the claimant owned at least a share of copyright which the defendant infringed. Remedies and consequential matters were reserved.

• High Court: In an earlier judgment, [2020] EWHC 1058 (Ch) , parts of the defendant’s pleading had been considered. The present court held that this did not preclude summary determination of the pleaded defences.
• Master: On 29 September 2020, Master Kaye permitted amendments concerning the published biography and alleged third-party involvement in creating the Letter.
• High Court: On 29 October 2020, permission to appeal against the amendment decision was refused.