Duchess of Sussex v Associated Newspapers - The Mail's Appeal

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Court of Appeal (Sir Geoffrey Vos MR, Dame Victoria Sharp, President, Lord Justice Bean) HRH the Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810 (2 Dec 2021)

This was an appeal against the decisions of Mr Justice Warby in HRH The Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch)  on 11 Feb 2021 and HRH Duchess of Sussex v Associated Newspapers Ltd. [2021] EWHC 1245 (Ch) on 12 May 2021.   I discussed those judgments in Summary Judgment - Duchess of Sussex v Associated Newspapers and Copyright - Duchess of Sussex v Associated Newspapers Ltd on 12 Feb and 13 June 2021 respectively. 

The Litigation
The duchess sued the publisher of the Mail on Sunday and the MailOnline after they had reproduced and commented upon large passages from a handwritten letter that she had sent to her father.  Her causes of action were misuse of private information and infringement of copyright.  The learned judge held that the defendant had no real prospect of successfully defending the claim and granted summary judgment to the duchess.

The Appeal
Lord Justice Bean granted the publisher permission to appeal on the following grounds:

"....... (1) the judge failed to make findings on the factors relied on as undermining or diminishing the weight of the Duchess's privacy right, (2) the judge wrongly thought that the Duchess's disclosures of the Letter to People magazine and the Book were relevant only to the issue of public domain, and not to her conduct and ambivalence, (3) the judge failed to recognise that the Duchess's disclosures to People magazine and the Book and her intentions in relation to disclosing the Letter were relevant to the assessment of the Murray factors (taken from Murray v. Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481 at [36]) at stage one, (4) the judge gave inadequate weight to the Article 10 rights engaged, and assessed them on an overly restrictive basis, especially in relation to reply to attacks, (5) the judge failed to attach sufficient significance to the prospect that Associated Newspapers' pleaded case would be made good at trial, and (6) the judge wrongly assessed what further evidence was likely to be available at trial."

"Article 10 rights" referred to the rights that are granted by art 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4th November 1950 which is incorporated into English law by the Human Rights Act 1998.

The appeal came on before Sir Geoffrey Vos, the Master of the Rolls, Dame Victoria Sharp, the President of the Queen's Bench Division, and Lord Justice Bean between 9 and 11 Nov 2021.  The Court delivered judgment on 2 Dec 2021 (see HRH the Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810 (2 Dec 2021)).  At paras [8] and [9] of his judgment, Sir Geoffrey said:

"[8] The main legal points in this appeal are that: (i) the judge wrongly stated the test, by suggesting that the defendant had to justify an interference with the claimant's right of privacy, when the proper approach was to balance the competing rights and interferences under articles 8 (article 8) and 10 (article 10) of the European Convention on Human Rights (ECHR) (the appropriate test issue), (ii) the judge adopted a flawed analysis of the factors undermining the Duchess's alleged reasonable expectation of privacy (the reasonable expectation of privacy issue), (iii) the judge was wrong to apply a strict test of necessity and proportionality to Mr Markle's right of reply to the People Article; a much broader approach to the facts was required on authority (the right of reply issue).
[9] As to copyright, Associated Newspapers' two main grounds of appeal are that (i) the judge failed properly to evaluate the interference with article 10, saying that this was not one of the rare cases in which freedom of expression would outweigh copyright in the absence of a fair dealing defence, and (ii) the judge failed properly to evaluate the fair dealing defence, bearing in mind the limited scope of the copyright in the Letter and the wide scope of the concept of reporting current events."

Sir Geoffrey noted that the duchess had filed a respondent's notice 

".......... contending that Associated Newspapers' defence, even if relevant to the issues, had no reasonable prospect of success. The Duchess submitted that a trial would be a further intrusive process in a case in which it could already be seen that there could have been no justification for the publication of large tracts of her private Letter."

Both sides applied to adduce additional evidence which the Court agreed to hear de bene esse.

The Issues
At para [61] the Master of the Rolls summarized the main issues raised in the appeal:

"i) The new evidence issue: Whether the new evidence provided by each of the parties should be admitted.
ii) The nature of the attack issue: Whether the judge mistakenly failed to recognise the significance and importance of the People Article's attack on Mr Markle.
iii) The reasonable expectation of privacy issue: Whether the judge adopted a flawed analysis of the factors undermining the Duchess's alleged reasonable expectation of privacy.
iv) The appropriate test issue: Whether the judge wrongly stated the test, by suggesting that the defendant had to justify an interference with the claimant's right of privacy, when the proper approach was to balance the competing article 8 and 10 rights.
v) The right of reply issue: Whether the judge wrongly applied a strict test of necessity and proportionality to Mr Markle's right of reply to the People Article.
vi) The public interest/article 10 copyright issue: whether the judge failed properly to evaluate the interference with article 10, saying that it would be a rare case in which freedom of expression would outweigh copyright.
vii) The fair dealing copyright issue: whether the judge wrongly relied on his privacy analysis to reject the fair dealing defence to breach of copyright, bearing in mind the limited scope of the copyright in the Letter and the wide scope of the concept of reporting current events."

The New Evidence Issue
As the new evidence had been widely publicized in the press, nationally and internationally, Sir Geoffrey admitted it as a matter of pure pragmatism but doubted that it would satisfy the Ladd v. Marshall [1954] 3 All ER 745, [1954] WLR 1489, [1954] 1 WLR 1489, [1954] EWCA Civ 1 criteria. Most of the evidence concerned the possible contribution of a member of the duchess's staff to the drafting of her letter and information that she had provided to the authors of a subsequently published book.  The duchess also admitted an inaccuracy in her pleading which the Master of the Rolls regarded as "at best, an unfortunate lapse of memory on her part".  None of it had any bearing on any of the issues that the Court of Appeal had to decide.

The Nature of the Attack Issue
Sir Geoffrey described this as "the issue at the heart of Associated Newspapers' factual appeal,"   He continued:

"Shortly stated, it is said that the judge focused on Mr Markle's dealings with the press, rather than on the attack that the People Article had mounted upon him. Had the judge realised the significance of that attack, he would have realised that Mr Markle was fully entitled to respond to it in the public domain. People magazine has some 40 million US readers. Mr Markle was being traduced. Whether or not the claimant was directly responsible for passing information to People magazine, but particularly if she was, the Letter was a central part of the attack, and Mr Markle could not effectively and publicly respond to it without disclosing the contents of the Letter. Merely giving his side of the story was not enough."

The Master of the Rolls rejected that contention.    The real questions were, (i) whether the judge was wrong to think that further evidence was not needed to decide the issue, and (ii) whether he was wrong to decide it was inappropriate to deploy the content of the letter to answer the article in People.   As to the first question it was hard to see what evidence could be adduced at trial that would alter or bear upon the issue.  As for the second, his lordship considered that Mr Justice Warby was in just as good a position as a trial judge to look at the article in People. the duchess's letter and perhaps the articles in the Mail on Sunday and MailOnline and then decide if the disclosure of the contents of the letter was appropriate to rebut the allegations that had been made against Mr Markle.  In the Court's view, Mr Justice Warby's assessment was correct.

The Reasonable Expectation of Privacy Issue
This was whether the judge was wrong to suggest that the defendant had to justify an interference with the claimant's right to privacy?   Sir Geoffrey considered that issue with the "right of reply issue", that is to say, whether the judge wrongly applied a strict test of necessity and proportionality to Mr Markle's right of reply to the People article?  Upon analysing Mr Justice Warby's reasoning, the Master of the Rolls did not think that the judge has thought that the defendant had any burden of proof requiring it to establish that it should be allowed to publish the letter. Nor did the judge think that the defendant had to show that publication was necessary in the public interest in order to outweigh the claimant's reasonable expectation of privacy.   That disposed of the primary criticism of Mr Justice Warby's decision.

There was, however, another reason why the defendant's submission that the judge applied the wrong tests had to be rejected. The judge did exactly what the parties had asked him to do. He decided whether the binary test at stage one was answered in favour of the claimant, identifying his reasons in great detail, and then looked at stage two to see whether the art 10 right to freedom of expression outweighed the claimant's reasonable expectation of privacy.  The judge had been right to decide that it was inappropriate and disproportionate to deploy the detailed content of the letter in answer to the article in People.

The Public Interest/Art 10 Copyright Issue
The publisher argued that Mr Justice Warby had lumped freedom of speech together with fair dealing, and used his arguments on privacy to reject both, without even considering Mr Markle's own right to free speech. It also said that the judge had failed to evaluate the extent or weight of the copyright, in the sense of the intellectual creativity in the letter. Had he done so, the defendant argued, he would have realized that the letter had a low level of copyright protection to put in the balance against the defendant's and Mr Markle's art 10 rights. Finally, the publisher argued that it had been wrong to assume that using large parts of the letter was more objectionable than using less, since using more allowed fairer evaluation.   

Sir Geoffrey rejected that criticism.  In his judgment, Mr Justice Warby understood that "the nature and degree of the originality involved in a work can affect the availability of defences such as fair dealing, public interest, and … freedom of expression".   Secondly, nothing advanced by the defendant suggested that there was any triable issue that would look different at trial.  Thirdly, criticism of the judge's evaluation of the case law had been overstated.   Fourthly, the defendant had not impugned the judge's careful balancing act.

The Fair Dealing Copyright Issue
The defendant adopted similar arguments on the fair dealing defence to those advanced under art 10.  Sir Geoffrey rejected those arguments for the same reason.  The judge did understand the nature and degree of the originality involved in the letter, and that it could affect the fair dealing defence. The Master of the Rolls added that the defendant did not point to a triable issue in relation to fair dealing, save to say that the evaluation of fairness should be done after a trial but it did not explain why.

Conclusion
Sir Geoffrey rejected the appeal.   He explained at [105]:

"The appeal was against the judge's decision that it could be seen mainly on the basis of the central documents in the case (viz the People Article, the Letter, and the Articles themselves) that the claimant's reasonable expectation of privacy and copyright in the Letter had been infringed. After careful consideration of his detailed judgment, I agree with the views the judge expressed on these very confined, mostly factual, questions."

He added that it might have been proportionate to disclose and publish a very small part of the letter to rebut inaccuracies in the People article but it was not necessary to deploy half the contents as the defendant did. The primary purpose of the articles was not to respond to the inaccurate allegations against Mr Markle in the People article. The true purpose of the publication was to reveal for the first time he "[t]he full content of a sensational letter written by [the Duchess] to her estranged father shortly after her wedding".

Dame Victoria and Lord Justice Bean concurred.

Further Information
Despite its apparent complexity, this case boils down to one issue.   Does the right to free expression under art 10 of the Convention trump property rights like copyright and the rights granted by art 8.  The answer seems to be that "it depends".  It did not in this case because the newspapers disclosed more than was necessary to enable Mr Markle to respond to the article in People but Sir Geoffrey did leave open the possibility that a more limited disclosure would have been allowed.   Anyone wishing to discuss this article or any of the issues mentioned in it is invited to call me on +44 (0)20 7404 5252 during normal UK office hours or send me a message through my contact form.

I should like to wish all my readers a happy, healthy and prosperous New Year.

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