Duchess of Sussex’ victory over Associated Newspapers Limited

Duchess of Sussex’ victory over Associated Newspapers Limited

Key Contact: Huw Roffe

Author: Katie Lane

The High Court recently granted the Duchess of Sussex’s (“the Duchess”) applications for summary judgment in relation to her claims for misuse of private information and copyright infringement against Associated Newspapers Limited (“ANL”), arising from the reproduction of large parts of a five-page letter written by the Duchess to her estranged father (“the Letter”), in articles published in the Mail on Sunday and the MailOnline (“the Articles”).

Misuse of private information

Reasonable expectation of privacy

The main issue between the parties was whether the Duchess enjoyed a reasonable expectation that the contents of the Letter were private and would remain so; or whether she had no such reasonable expectation. ANL argued that:

  • The Duchess had caused or permitted information regarding the existence of the Letter and a description of its contents to enter the public domain; and
  • The court should infer that the Letter was written and sent with a view to it being read by third parties and/or disclosed to the public. Further, that the Duchess was contemplating using the Letter as part of a media strategy to improve her image.

Mr Justice Warby rejected these arguments and said that there was no authority that an intention to disclose some or all the information at a later stage was fatal to a claim. He found that the Duchess clearly enjoyed a reasonable expectation of privacy in respect of the Letter and was bound to win at trial and nothing that ANL pleaded in answer to this part of her case provided any reasonable basis for defending the issue.

Balancing competing rights

It was concluded by Mr Justice Warby that a court would unlikely find in favour of ANL and their audiences when striking the balance between the competing rights to privacy and freedom of expression. The key reasons for this were that although importance had to be attached to the Duchess as a public figure, her status would not outweigh her right to privacy in relation to the contents of the Letter.

Further, that the prospects of ANL obtaining evidence from supposed “best friends” of the Duchess to support the issue that the Duchess allegedly authorised the publication of the article in US magazine People (when the existence of the Letter first became public) and passed information to them about the contents of the Letter, were slim. However, even if evidence were obtained, it was unlikely that the court would give any significant weight to this issue. The overriding analysis was that the publication of the information was held to be manifestly excessive and hence unlawful.

Infringement of copyright

In respect of the claim for copyright, there was no doubt that substantial parts of the Letter (and the electronic draft of the Letter the Duchess had created on her phone) were published in the Articles and had infringed her copyright. The questions of whether, and to what extent, the Letter was original were relevant to the issues of infringement and to the subsistence of copyright. The suggestion by ANL that the Letter had been co-written by Mr Knauf (communications secretary to the Duchess) was deemed unlikely based on the evidence submitted by ANL on this issue. However, there will be a trial to determine this remaining issue about whether the Duchess was the sole author of the letter.

The summary judgment in this very high-profile case highlights the importance of an individual’s right to privacy and suggests that a claimant has a right to decide whether to publish personal and confidential information in a private letter.

How we can help

If you have any questions or you would like further information about how we can assist you in relation to any of the topics discussed in this article, we have expert lawyers in Data Privacy, Intellectual Property and Litigation who would be happy to assist.

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