DEFAMATION: There is no statutory public interest defence in copyright infringement

Justice, like democracy, is always better served by transparency

The Earl and Countess of Dumbarton – she said her privacy was invaded.

By Ian Murray, executive director of the Society of Editors

As the dust settles on the decision by the courts to uphold the complaints by the Duchess of Sussex, who remains the Countess of Dumbarton, against the Mail on Sunday and Mail Online that her privacy was invaded, it is right to consider last week’s verdict in its wider sense.

In delivering his decision to agree to the request for the case to be decided without going to trial, Mr Justice Warby made plain his view that none of the evidence provided by the papers would sway his opinion that a private letter had been published and the Duchess had proved her case.

The Duchess was seeking damages for alleged misuse of private information, copyright infringement and breach of the Data Protection Act over five articles published in February 2019.

In his judgment, Mr Justice Warby ruled that the publication of Meghan’s letter to her father was “manifestly excessive and hence unlawful”.

And while it is not for me – or the Society of Editors – to argue that the verdict was wrong, we can express an opinion that open justice would have been far better served for the arguments on both sides to be aired in court before the eyes of the world.

And there were arguments being put forward by the papers that the Duchess’s letter to her father – who was willing to give evidence on behalf of the titles – was not a private matter.

These points and others seem perfectly reasonable to be challenged in open court. By not allowing this the judge acted in his right, but has the wider good been served?

If it is the media’s role to hold the rich and powerful to account, it is also the Law’s role to be seen to be acting with complete impartiality. And while – again I stress – there is no accusation that the judge acted in anyway improperly – would the reputation of the courts for holding the rich and powerful and members of the establishment to the highest standards of scrutiny been better served had the trial gone ahead.

The fact this case involved the wife of the Queen’s grandson who is sixth in line to the throne would, I would contend, make it even more important the public was able to see justice fully enacted.

And while there is much sympathy and support for the Prince and his wife and their decision to choose a life apart from the Royal Family, it cannot be denied there is also a body of the public that is unhappy that the couple claim to wish to hide from the limelight and yet still appear to court it when it suits them.

The past few days have seen that state of affairs very much in evidence as in a period of 96 -hours the Duchess won her court case and attacked the papers she had defeated over her right to privacy, then posed for photographs to announce her pregnancy and it has been confirmed she and the Prince are to star in a 90-minute TV interview with chat show host Oprah Winfrey.

What’s more, the couple permitted the photograph announcing the Duchess’s pregnancy to be splashed across UK titles the Sussexes had stated they would no longer communicate with last summer – including the sister paper she had just defeated in court and described as having ‘dehumanising practices.’

The public would have every right to wonder why the courts might be appearing to be upholding these apparent double standards. They would hopefully have understood the issues far better had they been given a full public airing.

To many, one of the most surprising aspects of the Duchess’s successful case against the Mail on Sunday and the Mail Online will have been the knowledge that it is the writer of a letter – or email – who holds the copyright and not the person who receives it.

This may be a small point to the majority of people, but by underscoring this aspect of the law the Duchess of Sussex’s victory also runs the risk of having a chilling effect on not only the media but the bringing into the open issues that may be very much in the public’s interest to be aired.

How many potential whistle blowers who are in receipt of damning evidence in the form of a correspondence will think twice before going public for fear of falling foul of copyright or privacy laws?

How will media newsrooms handle such information if it is made available to them when there is no statutory public interest defence in copyright infringement, although it can be better argued for privacy cases. And, as we have just witnessed, courts will not even permit some cases to be debated in open court.

It surely cannot be in anyone’s interest, least of all the public’s, if the fall-out from the Duchess of Sussex’s case against The Mail on Sunday and Mail Online leads to a further chilling effect of the UK media’s ability to hold the powerful to account and the public’s confidence in the openness of the legal system is undermined.

Justice, like democracy, is always better served by transparency and the illuminating light of day.

The Earl and Countess of Dumbarton before the court hearing.

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