HRH the Duchess of Sussex v Associated Newspapers Ltd

A court order publicising a judgment must be clear and readily understood. A public-domain proviso should not expose a publisher to contempt proceedings merely because reporting or commentary may be disputed as fair or accurate. Commentary should not be subject to prior restraint on that basis.

Publicity orders in intellectual-property litigation are discretionary. They are not necessarily the norm, and must be justified by the purposes identified in the Enforcement Directive and by the circumstances of the case. Relief may be granted on issues finally determined by summary judgment even though other issues remain outstanding. A stay pending appeal may be appropriate where immediate compliance would negate the right to seek permission to appeal.

The judgment concerned consequential matters following an earlier summary judgment for the claimant on liability for misuse of private information and copyright infringement, reported as [2021] EWHC 273 (Ch). The court had subsequently decided to grant an injunction, subject to a public-domain proviso, and to order publication of an account of the copyright infringement, reported as [2021] EWHC 510 (Ch).

The remaining issues concerned the wording of the proviso, the timing and form of publication, permission to appeal against the publication order, a stay pending appeal, and the time for filing an appellant’s notice.

1. Public-domain proviso. The words “fair and accurate” were omitted from the proviso. They had indicated the purpose of the carve-out rather than supplied a definition, and their inclusion could create an inappropriate risk of contempt proceedings. Commentary should not be subject to prior restraint on the basis that it might be inaccurate or unfair. The order had to be clear and readily understood.
2. Form of publication. Publication in the Mail on Sunday could take place within 14 days. The defendant’s proposed front-page presentation was sufficiently prominent, given that the statement was substantially longer than the original trailer. For MailOnline, publication on the home page for 24 hours and then on a news page for six days was reasonable; “prominent position” was too imprecise for an order carrying a penal notice.
3. Permission to appeal. Permission was refused. Publicity orders were a matter of judicial discretion and were not necessarily the norm, although the cases showed that they were common practice. The court had expressly considered the purposes identified in recital 27 of the Enforcement Directive and had found that the order served both purposes. The challenge disclosed no real prospect of success.
4. Final relief and outstanding issues. Relief reflecting the final determination of the copyright merits need not be withheld merely because other aspects of the claim remained unresolved. The withheld final injunction was distinct from relief that did not depend on those outstanding issues.
5. Stay and time for appeal. A stay was granted until the Court of Appeal had decided the matter. Immediate compliance would otherwise negate the defendant’s entitlement to seek permission to appeal. A 14-day extension was also granted for filing the appellant’s notice concerning the publication order.

The judgment followed the court’s earlier summary judgment on liability, reported as [2021] EWHC 273 (Ch), and its consequential judgment, reported as [2021] EWHC 510 (Ch). The present judgment resolved the remaining consequential and procedural issues.