Posted on Oct 04, 2019 in Intellectual Property by Liam McMonagle
Earlier this week, the Duke and Duchess of Sussex commenced legal proceedings against the Daily Mail for copyright infringement, misuse of private information and breach of data protection laws. This arose from a story published by the Daily Mail in February which included details of a letter sent by the Duchess to her father.
The couple also issued an unusually personal statement setting out Prince Harry’s views on his wife’s treatment and the reasons for taking the steps they had.
The claim shows the somewhat fragmented nature of privacy law in Britain today. The privacy-related issues– data protection infringements and misuse of private information – will depend mainly on whether publication was in the public interest.
“Misuse of private information” involves balancing the right to privacy against the public interest in publication and freedom of speech. A key question is whether a person has a legitimate expectation that the material should remain private. In the case of a handwritten letter from the Duchess to her father, this may be self-evident.
It is then necessary to consider whether there is a public interest in it being published. This will depend on the circumstances. It will be easier to establish that it is in the public interest to publish information about public figures, such as members of the royal family. However, the particularly sensitive, private and personal nature of the correspondence involved here might make establishing a public interest in publication difficult to justify.
Another ground of claim is under data protection laws. It is clear that the letter published in the Daily Mail is personal data, as is almost any information published about a person in the press. This is generally permitted under data protection laws because there is an exemption for journalistic activities which is set out in the Data Protection Act 2018. This permits processing of personal data in certain cases where the publisher has a reasonable belief that publication is in the public interest. (Note that it doesn’t have to actually be in the public interest, there just has to be a ‘reasonable belief’ that it is.)
To determine what is in the ‘public interest’ , the Editors’ Code of Practice would be relevant. This has a non-exhaustive list of examples of matters which might be in the public interest and includes “protecting the public from being misled by an action or statement of an individual or organisation”. Interestingly, the article which is the subject of the complaint does set out various reasons why the Duchess’ father published the letter which are generally based on “setting the record straight” in light of other accounts of his relationship with his daughter which had made it into the public domain. This might be used as the basis for an argument that there is a public interest at stake.
The claim for copyright infringement is potentially the most straightforward. As the author of the letter which was quoted almost in full in the article, the Duchess would own copyright. Publishing that material would, absent any justification, infringe that copyright. While her father, as the recipient, may own the physical letter, that would not entitle him or anyone he shared it with to publish it. The Daily Mail may argue that publication of the letter fell within an exemption in the Copyright, Designs and Patents Act which allows for ‘fair dealing’ in copyright works for the purpose of ‘reporting current events’. That depends on an assessment of the ‘fairness’ of the use of the material. It might be difficult to argue that the publication of all (or almost all) of the letter was ‘fair’ – as opposed to merely selected extracts. If successful, the copyright claim may also result in an order that the ongoing publication of the offending article on the Daily Mail website be stopped.
It will be interesting to see whether or not this claim is successful and, if it is, what outcome is achieved, given that the private information has already been made public. It may be that the Duke and Duchess’ goals are not necessarily to obtain specific redress for what has happened but to deter other publishers from what they consider to be undue invasions of their privacy in future.
Liam McMonagle is a Partner in our Intellectual Property Team. If you would like to discuss any issues that were touched upon in this article, please email Liam at email@example.com or call us on 01382 229111.
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