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European IP Bulletin, Issue 31, May 2006 - Media

Media

11. HRH The Prince of Wales v Associated Newspapers Ltd.

On 17 March 2006, Blackburne J, sitting in the Chancery Division of the High Court of Justice delivered a judgment in HRH Prince of Wales v Associated Newspapers Ltd [2006] EWHC 522 (Ch).

The Claimant, His Royal Highness The Prince of Wales, had applied for summary judgment against the Defendant, Associated Newspapers Limited, for breach of confidence and infringement of copyright, following the publication of a series of articles in the Mail on Sunday on 13 November 2005. The articles were based upon, and contained extracts from, a copy of a journal written by the Claimant containing impressions and reflections on his visits to Hong Kong between 27 June and 3 July 1997 on the occasion of the formal handover of Hong Kong to the Republic of China. The claim also extended to seven other journals acquired by the Defendant which were concerned with other overseas tours.

The Claimant contended that the journals set out his private thoughts and impressions of the tours and as they were not in the public domain (at least there had been no prior publication), they constituted confidential information. Furthermore, he alleged that the journals were original literary works and that by reproducing extracts of the Hong Kong journal and by copying and retaining possession of all eight journals in the course of its business, knowing or having reason to believe that they were infringing copies of copyright works, the Defendant had infringed his copyright in them.

The Defendant contended that the information was not confidential as it was not personal information but information relating to the Claimant’s public life in which there was a public interest. It further contended that the use of extracts from the journal did not infringe copyright as the use was not a substantial part and amounted to fair dealing for the purpose of reporting current events and/or for the purpose of criticism and review. Alternatively, it contended that the publication was in the public interest.

On the breach of confidence, the Judge considered whether the Claimant had a reasonable expectation of privacy in respect of the contents of the Hong Kong journal. He held that the journal was not in the public domain before publication and that the fact that the contents of the journal could be considered political did not prevent the Claimant from having a reasonable expectation of privacy. Further, he held that the Defendant’s right to freedom of expression should not override the Claimant’s countervailing right to confidentiality in respect of his own private thoughts.

On the copyright infringement, the Judge held that the extracts quoted formed a substantial part of the Hong Kong journal, qualitatively as well as quantitatively. He rejected the defence of fair dealing for the purposes of reporting current events on the ground that the articles could not be said to relate to current events, but rather appeared to have the sole aim of revealing the contents of the journal itself. He also rejected the defence of fair dealing for the purpose of criticism and review as the journal had not yet been made available to the public. Finally, he rejected the public interest defence for lack of clear public interest considerations.

Thus, the application succeeded in respect of the claims in confidence and copyright concerning the Hong Kong journal and summary judgment was awarded. The claims in respect of the other journals will go to trial.

However, it is doubtful that the Claimant could realistically be considered as the winner here, despite judgment in his favour.  Not only did the hearing and judgment disseminate all of the detail that he would prefer to keep confidential to a very wide audience around the world, but the future trial on the contents of the other journals suggests their contents will also be made public in a forum.

 

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