After the recent interview with Oprah, there really is no better time to discuss the recent High Court Decision of Duchess of Sussex v Associated Newspapers Ltd  EWHC 273 (Ch) and the impact this may have on Privacy claims in Scotland.
Facts of the Case:
In September 2019, Ms Markle had brought a claim against the publisher of The Mail on Sunday and The MailOnline after a letter sent to her father was disclosed without any prior consent.
Ms Markle alleged that the publications of said letter:
- Involved a misuse of her private information;
- Breached her data protection rights; and
- Infringed her copyright in the letter.
The Defendants robustly defended the claim arguing:
- That there was no question of confidentiality in respect of the letter;
- That any confidentiality had been lost/ they were various countervailing interests in favour of the disclosure of said letter;
- There was no copyright present within the letter as they were simply reciting previous facts of Ms Markle’s relationship with her father;
- There was no infringement; and
- There was a lack of clarity as to its authors.
The judgement was delivered on 11th February 2021 by Lord Justice Warby who had given a judgement on Ms Markle’s application for orders, striking out part of the Defence and entering summary judgement in her favour on her claims for misuse of private information and copyright infringement.
Lord Justice Warby held that there was no compelling reason for the disclosure of said letter and that Ms Markel had a reasonable expectation that the contents of the letter would remain private.
Lord Justice Warby failed to accept the copyright defence put forth by the Defender, and found that there was in fact an infringement in the substantial copying of the letter which appeared in the articles.
The Defendants attempted to rely on the fair dealing defence to infringement on the basis that they were reporting current events. However, Lord Justice Warby held that the events were neither current nor was the reporting deemed as fair. Lord Justice Warby made clear that there was no basis on which the court could conclude that, although the copying was not fair dealing, the public interest required the copyright to be overridden.
Lord Justice Warby did note that there was a need for further evidence in order to clarify whether staff at Ms Markel’s residence may have had input into the letter and accordingly may own parts of the copyright within the letter.
What does this mean for Scotland?
Whilst we know that there is a common law right to privacy in Scotland, what exactly does Duchess of Sussex v Associated Newspapers Ltd  EWHC 273 (Ch) mean for Scotland?
The judgement delivered by Lord Justice Warby provides for important guidance as to what exactly will be regarded as originality and fair dealing in respect of reporting. It further highlights that Claimants can rely on not only defamation, but also the protection of privacy and copyright.
Media figures will now think twice on the potential implications and recourse available when there has been an infringement of an individual’s copyright and misuse of their private information.
Please remember that the right to Privacy is a qualified right – if you have any concerns as to whether your privacy or copyright has been infringed, please contact our specialist team at Jones Whyte on 0141 375 1222.
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