Last week saw the latest development in the Duchess of Sussex’s case against the publisher of the Mail and Mail on Sunday, Associated Newspapers Limited (ANL), with the Duchess winning the copyright element of the claim.
The Duchess of Sussex’s claim is for breach of privacy, copyright, and data protection, and back in February our column covered the High Court’s ruling that she had been successful in her privacy claim, and partly successful in the copyright claim.
To summarise briefly, the case is based on the Mail and Mail on Sunday’s publication of substantial parts of a handwritten letter from the Duchess to her estranged father Thomas Markle, which was sent before her wedding to Prince Harry in 2018.
In February this year Mr Justice Warby awarded summary judgment in the Duchess’ favour in relation to the privacy claim, stating that the contents of the letter related to “inherently private and personal matters”, and that the “disclosures were manifestly excessive and hence unlawful”.
The judge also ruled that she had been successful in her claim for breach of copyright, subject to the issue of the ownership of the copyright being addressed. ANL is seeking permission to appeal February’s ruling to the Court of Appeal.
In relation to the claim for breach of copyright ANL had argued that the Duke and Duchess of Sussex’s former communications secretary, Jason Knauf, had co-authored the letter, and therefore the Duchess was not the sole copyright owner.
In last week’s development Mr Knauf, through his lawyers, stated that he “emphatically” denied co-writing the letter and that is was the Duchess’ letter alone.
Lawyers acting for the Queen went on to confirm that “they did not consider the Crown to be the copyright owner”.
Given this development, ANL did not oppose the granting of summary judgment in the Duchess’ favour in relation to the copyright part of the claim, although they are still seeking permission to appeal the February ruling.
So, what does the latest development tell us in relation to copyright law?
Well, in all honesty, not very much. From a legal point of view, it is straightforward that as the Duchess wrote the letter alone, she is the sole copyright owner.
But, what you can take away from this case is a timely reminder that it is dangerous to become solely focussed on libel or privacy when considering the risk level in publishing a story.
Over the last few years, and ever since the Defamation Act 2013 came into force and introduced the “serious harm” test, claimants are increasingly using other legal avenues to pursue claims against publishers.
It is becoming more common for claimants to bring multiple actions together for breaches of copyright and data protection, in addition to libel and/or privacy. This makes claims more complex and expensive to defend.
It is also worth remembering that although a libel claim has a limitation period of one year from first publication, claims for infringement of copyright, breach of privacy and data protection have a longer limitation period of six years, leaving publishers with potential liability for a significantly longer length of time.
Therefore, whilst this latest development in the Duchess’ case isn’t ground breaking from a legal perspective, the case as a whole serves as a very good example of the multi-pronged cases that publishers are now frequently finding themselves defending. So, don’t forget to think outside the box and consider all avenues of potential claim.