The Form of the Carve Out and Publication Order: Duchess of Sussex v Associated Newspapers

By Seauton, 24 February 2019 -
Own work, CC BY-SA 4.0,
 

Jane Lambert

Chancery Division (Lord Justice Warby) HRH the Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 669 (Ch) (22 March 2021)

Following the largely successful summary judgment application by Her Royal Highness, The Duchess of Sussex against the publisher of The Mail on Sunday and the MailOnline in HRH The Duchess of Sussex v Associated Newspapers Ltd. [2021] WLR(D) 100, [2021] 4 WLR 35, [2021] EWHC 273 (Ch) which I discussed in Summary Judgment - Duchess of Sussex v Associated Newspapers on 12 Feb 2021, Lord Justice Warby granted a declaration, injunction and publication order to the duchess and gave directions for the conduct of the remaining proceedings in HHR The Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 510 (Ch) (5 March 2021). I discussed those proceedings in Judgment and Order: Duchess of Sussex v Associated Newspapers Ltd on 9 March 2021, There remained issues over the wording of a carve-out from the injunction and the publication of notice of the order which required a further judgment from his lordship yesterday (see HRH the Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 669 (Ch) (22 March 2021)).

The Carve-Out

The injunction that I mentioned above was a final injunction to restrain misuse of private information with a limited public domain carve-out to ensure that the injunction does not prohibit publication of a fair and accurate report of the judgment (or for that matter commentary on the judgment).  Her Royal Highness's legal advisors produced the following wording for the carve-out:

"provided that nothing in this Order shall prevent the publication, disclosure or communication of any fair and accurate report of the judgment given on the Summary Judgment Application or any fair and accurate commentary on that judgment."

The publisher objected to the underlinings on the ground that there was scope for disagreement on what might be "fair and reasonable" and that the publisher should not be exposed to the risk of contempt proceedings for content that had been written in good faith.  The judge upheld the objection and approved the wording proposed by the defendant publisher adding that it satisfied the cardinal requirement that an order of this kind must be clear and capable of being readily understood.

The Publication Order

Lord Justice Warby made the following order for publication and dissemination of his judgement pursuant to para 26.2 of the Part 63 Practice Direction, He ordered the following notice to appear on page 3 of The Mail on Sunday:

"The Duchess of Sussex

Following a hearing on 10-20 January 2021, the Court has given judgment for The Duchess of Sussex on her claim for copyright infringement. The Court found that Associated Newspapers infringed her copyright by publishing extracts of her handwritten letter to her father in The Mail on Sunday and in Mail Online.

There will be a trial of the remedies to which the Duchess is entitled, at which the court will decide whether the Duchess is the exclusive owner of copyright in all parts of the letter, or whether any other person owns a share."

The judge ordered the same notice to appear in The Mail Online for a week. The underlined text should contain a hypertext link to the judgment together with the words "

"The full judgment and the Court's summary of it can be found here."

His lordship noted at para [5] of yesterday's judgment that 4 issues remained about the publication order: 
(a) when the statement should be published; 
(b) the form it should take; 
(c) whether he should grant the defendant permission to appeal against the publication order; and 
(d) whether he should grant the defendant's application for a stay of the publication order pending a possible appeal.

When the Statement should be Published

The duchess wanted the statement to appear within 7 days of the order which would be 28 March on the ground that she had waited long enough for the relief, The publisher requested a period of 14 days in case there was a big news story on the 28 March. The judge parked the issue in view of his decision on the defendant's application for a stay observing that: "This is not red-hot news, of a perishable kind."

Form of the Statement

The parties had agreed the form, wording, font, size and placement of the notice of the printed edition. A mock-up had been prepared and shown to his lordship.  There was a dispute as to the font of the front page trailer. The claimant wanted it to be in the same font as the trailer complained of.  The defendant proposed to run it as a sub-banner in a smaller font at the foot of the page arguing that the claimant's proposals would make a mess of its front page and interfere with its right to free expression as the corrective trailer would be much longer than the offending one.  It produced another mock-up of its proposal.  The learned lord justice agreed with the defendant stating at para [15]:

"The claimant's legal team have not been able to cast doubt on the defendant's account of the likely effect of the form of order sought. Having studied the mock-up, it seems to me to be sufficiently prominent and eye-catching to serve the purposes of the Publication Order. I therefore approve the defendant's proposed version of this part of the order."

As for the internet edition, the publisher proposed that the prescribed form of words be published on the home page of MailOnline for 24 hours and thereafter for 6 days on a news page.  It contended that the proposed length of publication was longer than the longest period for which any of the articles was originally featured on the homepage (being 22 hours, 25 minutes). It was also in keeping with the normal practice of MailOnline, whereby the content of the homepage changes continually, with most stories moving off the homepage in the course of a day, meaning that regular readers expect to see new information on the page each day. The majority of stories are archived (and therefore searchable) after moving off the homepage and/or the news page. The proposal would give the online notice continued prominence on an important part of the website, ensuring its ongoing availability to readers for the period stipulated by the court.

The claimant had argued that the transfer of the statement to a news page would render it inconspicuous but the judge was not persuaded that that would be the case.  He accepted the defendant's points that the news page would give the notice adequate prominence and that the online content of MailOnline would be available via its app.

Permission to Appeal

Although Lord Justice Warby had refused permission to appeal against his judgment of 5 March 2021 he listened to the defendant's application for permission to appeal against the publication order.  The grounds of appeal were as follows:
(1)   The judge had erred in concluding that it is common practice to make such orders in IP litigation and that policy favours doing so;
(2)   He had erred in failing to recognise that the order sought in this case served neither of the two objectives in recital 27 to the Enforcement Directive; and
(3)   He had erred in granting any final relief in respect of the copyright claim "at this stage (i.e. the declaration, the account of profits and the dissemination order) given that there are still substantive issues that remain outstanding in respect of the copyright claim."

His lordship rejected the application.   Taking the third ground, first, there was no reason why the court should not grant relief in respect of issues that had been decided merely because there was still an outstanding issue on the copyright claim.   As to the first ground, the defendant had misread his judgment.  What the judge had said was that the cases show that publication orders were "common practice"b which was not the same as saying that they were "the norm".   The second ground was a challenge to his lordship's assessment which is a matter for a judge's discretion.  Such a challenge could not succeed as it was not alleged that he had taken account of irrelevant factors or failed to take account of a factor that he should have taken into account.

Application for a Stay

Even though Lord Justice Warby had refused permission to appeal on the grounds that such an appeal would have little chance of success, the defendant was free to apply for permission from the Court of Appeal.  It was possible for the Court to grant permission to appeal and a stay pending the hearing.   Refusing a stay would negate that entitlement.   His lordship granted a stay pending the proceedings in the Court of Appeal.

Further Information

Anyone wishing to discuss this article or any of the issues arising in this litigation may call me on 020 7404 5252 during office hours or send me a message through my contact page.  

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