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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hyde Park Residence Ltd v Yelland & Ors [2000] EWCA Civ 37 (10 February 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/37.html
Cite as: [2000] EWCA Civ 37, [2000] ECDR 275, [2001] Ch 143, [2000] EMLR 363, [2000] RPC 604, [2000] 3 WLR 215

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Case No:1999/0459/3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHANCERY DIVISION
MR JUSTICE JACOB
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 10th February 2000

B e f o r e :
LORD JUSTICE STUART-SMITH
LORD JUSTICE ALDOUS
and
LORD JUSTICE MANCE
(1) HYDE PARK RESIDENCE LTD
(Appellant)
and
(1) DAVID YELLAND
(2) NEWS GROUP NEWSPAPERS LIMITED
(3) NEWS INTERNATIONAL LIMITED
(4) REUBEN MURRELL
(Respondents)
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Michael Bloch QC and Alistair Abbot (instructed by D.J. Freeman for the Appellants)
Richard Spearman QC (instructed by Farrars & Co for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©

Thursday, 10th February 2000

JUDGMENT


LORD JUSTICE ALDOUS:
1. On 30th August 1997, Diana Princess of Wales and Mr Dodi Fayed visited the Villa Windsor in Paris. It was a private home held on a long lease by Mr Al Fayed. In the early hours of the next day they were involved in a car crash which resulted in their deaths. The resulting national and international emotion and interest are well known.
2. On arrival at and departure from the Villa Windsor, the Princess and Mr Dodi Fayed were recorded on video tape by at least two of the security cameras that were installed. Security at the Villa Windsor was the responsibility of Hyde Park Residence Limited (Hyde Park), a company controlled by Mr Al Fayed. At the time of the visit, Mr Murrell was the employee of Hyde Park responsible for the security of the Villa Windsor. He let them in and saw them out. According to Mr Murrell a few days after the accident, he was instructed to print stills from the tape recording of the Princess and Mr Dodi Fayed arriving and leaving the Villa. I will refer to them as the driveway stills. He printed two copies and sent one set to Mr Klein, the president of the Ritz Hotel in Paris, and the other set was retained in the operations room at the Villa.
3. On 5th August 1998, Mr Paul Thompson, a reporter for The Sun, was approached by a woman who asked him whether he was interested in speaking to one of Mr Al Fayed's security guards. He said that he was and a meeting was arranged between himself and Mr Murrell. On 5th or perhaps 6th August, Mr Murrell gave to Mr Thompson the set of driveway stills that he had taken, without permission, from the operations room at the Villa Windsor. They were published without the consent of Hyde Park in The Sun on 2nd September 1998 as part of an article entitled "Video That Shames Fayed".
4. By writ dated 4th September 1998, Mr Al Fayed and Hyde Park started proceedings against Mr Yelland, the editor of The Sun; News Group Newspapers Limited, the publishers; News International Newspapers Limited, the proprietors, and Mr Murrell. Mr Al Fayed withdrew from the proceedings as he was not considered to be a necessary party.
5. In the statement of claim served on 30th October 1998, Hyde Park alleged that the acts of the defendants were wrongful. They relied upon a number of causes of action including breach of contract, inducement of breach of contract, breach of confidence and infringement of copyright. By summons dated 28th October 1998, Hyde Park sought summary judgment under O.14 and 14A RSC in respect of the allegations of breach of copyright. The essential allegations were that Hyde Park were the owners of the copyright in the film from which the driveway stills were printed and that by publishing the driveway stills in The Sun the defendants had infringed that copyright either by carrying out an exclusive right possessed by Hyde Park pursuant to the Copyright, Designs and Patents Act 1988 or authorising such an act. They claimed, amongst other things, an injunction, delivery up, an inquiry as to damages including damages for flagrancy (section 97(2)) and alternatively an account of the profits.
6. The summons came before Jacob J. Before him ownership and subsistence of copyright were not in dispute. Although a draft defence alleged that the driveway stills did not form a substantial part of the copyright work, that appears to have been abandoned. The substantive defence was twofold. First that there was no infringement as the driveway stills had been used in such a way as to constitute "fair dealing" within section 30(2) of the 1988 Act and second that publication was not unlawful as it was in the public interest.
7. Those defences were pleaded in the draft defence in this way:
"22.3 Further or alternatively, the exploitation of the Villa Windsor Pictures in and in connection with the publication of the Bodyguard Exclusive constituted fair dealing with the same for the purpose of reporting current events and, if necessary, the Defendants will contend that this was accompanied by a sufficient acknowledgement. The Defendants will rely upon the provisions of section 30(2), of the Copyright, Design and Patents Act 1988."
"22.1 At all material times it was in the public interest for copies of the Villa Windsor Pictures to be published as they were in the issues of The Sun dated 2, 3 and 4 September 1988 as part of the Bodyguard Exclusive, as without such publication the exposure of the falsehoods that was contained in the Bodyguard Exclusive would have lacked independent evidence to corroborate Mr Murrell's account and accordingly would have [been] ineffective, alternatively substantially less effective, to achieve that lawful end. Paragraph 13 above is repeated mutatis mutandis."
8. In his judgment of 16th March 1999 the judge upheld the defences of fair dealing and public interest. On that day the parties attended to make submissions as to the order that should be made. The defendants submitted that upon the terms of the judgment not only should the plaintiffs' application for summary judgment be dismissed, but that they were entitled to judgment dismissing the claim against them for infringement of copyright. The judge accepted that submission and without giving a further judgment ordered that the action for infringement of copyright be dismissed and that judgment be entered for the defendants in respect of the claim for copyright infringement. He gave leave to appeal and Hyde Park appealed contending that the judge was in error in concluding that the defendants had a bona fide defence based on fair dealing or public interest. They also contend that, even though the O. 14 summons was dismissed with the result that the defendants would have leave to defend, the judge should not have dismissed their claim for infringement of copyright.
9. It is important to bear in mind that the issues raised in this appeal arise before there has been a trial. Judgment, as sought by Hyde Park, can only be ordered if it be established that the defendants have no bona fide defence to the copyright claim. Order 14 does not provide a procedure for resolving disputes of fact and should not be used to carry out a trial on affidavit evidence. It follows that, when considering Hyde Park's case for O. 14 judgment, I will assume that the facts are as stated in the draft defence and as stated by the defendants in the evidence, except where they accept the evidence of Hyde Park or there could be no controversy. Thus allegations by the defendants as to what happened will appear as facts in the following account, whereas many of them are in dispute.
10. After the accident on 31st August 1997, there was considerable public interest in how it occurred. Mr Cole, the Harrods' director of public relations, on 5th September 1997, briefed the press on behalf of Mr Al Fayed. He said that an unnamed person in Paris had passed on to Mr Al Fayed the Princess's last words and requests. He also referred to a £130,000 diamond solitaire ring Mr Dodi Fayed had given to the Princess on 30th August. He said that Mr Al Fayed, when he went to Paris, had seen the bodies of both the Princess and Mr Dodi Fayed. Clearly Mr Cole was asked about the allegations that had been made that the driver of the car involved in the accident, an employee of the Ritz, had been drinking alcohol. He sought to throw doubt upon the blood alcohol levels found in the blood of the driver, but ran through the timetable of events leading up to the car crash. He accurately told the press the times of the arrival at and departure from the Villa Windsor by the Princess and Mr Dodi Fayed.
11. Despite the accurate briefing by Mr Cole of the times of arrival and departure from the Villa Windsor, Mr Al Fayed fabricated and gave wide publicity to a different version in a book entitled "Death of a Princess" written by Mr Thomas Sancton and Mr Scott MacLeod which was published in 1998, and the 8th February 1998 edition of the Sunday Times; in the 12th February and 31st August 1998 editions of The Mirror; and in a television programme "Secrets of the Crash" broadcast on ITV in July 1998. The gist of the falsehoods conceived by Mr Al Fayed are pleaded in paragraph 12.5 of the draft defence in this way:
"12.5 .... the gist of the falsehoods thus conceived and published to the general public throughout England and Wales was to the effect that (in addition to an earlier visit made on the weekend of 26 and 27 July 1997) on 30th August 1997, in preparation for a new life together and consistent not only with their intention to get married and to live in the Villa Windsor with the blessing of Mr Al Fayed but also with the existence of a conspiracy to kill them in order to prevent their marriage, Dodi and Diana had visited Villa Windsor for at least two hours, had been accompanied by an Italian designer who had already drawn up detailed plans for some of the apartments that Mr Al Fayed knew about because he was personally involved in these events, had manifested great happiness and affection towards one another, had examined every part of the house, and had taken a detailed interest in every aspect of the house and garden."
12. To those falsehoods must be added the fabricated story that Mr Al Fayed had paid for a ring to mark the engagement of the Princess and Mr Dodi Fayed, that he saw the bodies and that he was informed of the Princess's last words.
13. The reason why Mr Murrell stole copies of the driveway stills was explained in his affidavit. As he said:
"From the time of the accident until my resignation almost a year later, together with other employees of the plaintiff/Al-Fayed, I was subjected to a number of demands made by Al-Fayed and/or his senior managers on his behalf in what was a very clear attempt to put forward to the world at large an account that did not accord with the true sequence of events surrounding the crash. I cannot speculate on Al-Fayed's motives, but what was and is clear is that Al-Fayed wanted to create his own version of events, thereby misleading the public and, in particular, the investigating Judge who was examining the circumstances surrounding the crash. The cumulative effect of Al-Fayed's attempts to use me as a pawn so as to put forward his version of events, caused to me to decide at the very beginning of August 1998, as I set out below, that I no longer wished to be part of this deceit. I therefore took the decision to resign and expose Al- Fayed as a liar."
14. Mr Murrell went on in paragraph 26 of his affidavit:
"After taking the decision to resign, I believed it was important that the truth about Dodi and Diana's visit to Villa Windsor on 30th August 1997 should be made public in order to put an end to the lies that they were being told about this visit, and the alleged earlier visit and to make public the attempts by Al-Fayed to get Mr Rees-Jones to give a version of events that was convenient to Al-Fayed but which was untrue. I also wanted to make a stand against the pressure put upon employees of Al-Fayed and to demonstrate that I at least would not tell lies on Al-Fayed's behalf, as well as wanting to expose the pressure that was put upon various individuals employed by Al-Fayed through the Plaintiff to wrongly influence the true version of events surrounding the death of Dodi and Diana."
Despite the motives expressed by Mr Murrell, he sought and accepted payment for the story and supply of the driveway stills that he had taken dishonestly.
Fair dealing
15. The defence of fair dealing is provided by section 30 of the 1988 Act.
"Criticism review and news reporting
30(1) Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by sufficient acknowledgement.
(2) Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that (subject to subsection (3)) it is accompanied by sufficient acknowledgement.
(3) No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme."
16. The judge held that the defence of fair dealing had been established. Although he made no explicit finding as to what were the relevant current events, it appears that he believed them to be the events that took place on 30th August 1997 and perhaps 31st August 1997. As he said:
"A report on what actually happened which is in effect what these pictures were, was entirely topical at the time of publication: Mr Al Fayed had given them fresh impetus. Besides, at the time of publication the events were so much still under discussion that it would be pedantic to regard them as anything other than still "current"."
17. He went on to hold that the use made of the driveway stills by The Sun was within the phrase "for the purpose of reporting current events" giving those words the wide scope required. He also held that the use made was "fair dealing". He concluded The Sun were in a position where it was close to necessary to publish the photographs to refute what Mr Al Fayed had said in The Mirror and elsewhere. He said:
"Besides, in this case I think The Sun was in the position where it was close to necessary to publish the photographs to refute what Mr Al Fayed said in The Mirror and elsewhere. Mr Bloch said The Sun could have said they had interviewed Mr Murrell and seen the photographs without actually publishing them. Or it could have first told Mr Al Fayed that it had the pictures and challenged him to withdraw his statement. But the former course would not have had anything like the same impact and force as actual publication of the stills. A picture says more than a thousand words. The Sun was showing that it had convincing evidence of the duration of the visit. The latter course would have been to invite pre-emptive legal action.
However, Mr Al Fayed had clearly put into the public debate the question of what happened at the Villa Windsor. It was used in part to support a matter which was not only interesting for the public but involving as it did the mother of a future sovereign was genuinely of public interest. The suggestions being made, if true, were of far reaching importance. They even had similar hints of evil. So if they were false it was equally important that the falsity be exposed as soon as possible. It would have been inadequate for The Sun or Mr Murrell to supply the photographs merely to a relevant proper authority which was the investigating French Judge. By raising the matter in the public forum, in my judgment, Mr Al Fayed made it a "fair dealing" for The Sun to come back in that very forum."
18. The judge did not consider whether there had been sufficient acknowledgement as Hyde Park did not suggest that there was not. However, that will be a serious issue if the copyright claim goes to trial.
19. Mr Spearman QC who appeared for the defendants supported the reasoning of the judge. He submitted that this Court should not disturb the judge's conclusion unless it was established that he had made some error of principle or his conclusion was clearly unsustainable.
20. Mr Bloch QC who appeared for Hyde Park submitted the judge had gone wrong in principle and was plainly wrong. He submitted that the events of 30th August 1997 were not current on 2nd September 1998, the date of the publication of the driveway stills in The Sun. Secondly upon a fair reading of The Sun of 2nd September the purpose of the use of the driveway stills was not to report the events of 30th August, but to attack the veracity of Mr Fayed and to vilify him. Thirdly the way that the driveway stills were dealt with was not fair taking account of the use, the motives of Mr Murrell and The Sun, and that the driveway stills were unpublished and had not been circulated to members of the public. Publication by The Sun had destroyed their intrinsic value derived from the fact that they were amongst the last pictures taken of the Princess and Mr Dodi Fayed. He submitted that the motive of The Sun was to attack the veracity of Mr Fayed rather than to report any current events, and that the suggestion by the judge that The Sun was in a position where it was close to necessary to publish the photographs to refute what Mr Al Fayed said in The Mirror and elsewhere was contrary to the facts. The Sun had before 31st August 1998, the date of The Mirror article, acquired the driveway stills and produced the article. Further the exact timing of the visit to the Villa Windsor had been made public by Mr Cole in September 1997 during his press briefing.
21. The most recent consideration of "fair dealing" provisions, now contained in the 1988 Act, was by the Court of Appeal in Pro Sieben AG v Carlton UK Television Ltd [1999] 1 WLR 605. Robert Walker LJ gave the judgment with which the other members of the Court agreed. The case was concerned with use of part of a filmed interview in a television programme criticising cheque book journalism. The Court of Appeal differed from the judge as to what was the purpose of the use of the alleged infringing work. Robert Walker LJ at page 616 asked himself how and why the judge came to form such a different impression of the programme as a whole, and in particular of the alleged infringing extract. The reason, he concluded, was that the judge had erred in focusing too much on the expressed purpose, intention and motive of those involved in planning the programme and focusing too little on the likely impact on the audience. As Robert Walker LJ said at page 614B:
"It seems to me that in the composite phrases "for the purposes of criticism or review" and "for the purpose of reporting current events" the mental element on the part of the user is of little more importance than in such everyday composite expressions as "for the purpose of argument" or "for the purpose of comparison". The words "in the context of" or "as part of an exercise in" could be substituted for "for the purpose of" without any significant alteration of meaning.
That is not to say that the intentions and motives of the user of another's copyright material are not highly relevant for the purposes of the defences available under section 30(1) and section 30(2). But they are most highly relevant on the issue of fair dealing, so far as it can be treated as a discrete issue from the statutory purpose (arguably the better course is to take the first 24 words of section 30(1) and the first 16 words of section 30(2), as a single composite whole and to resist any attempt at further dissection). It is not necessary for the court to put itself in the shoes of the infringer of the copyright in order to decide whether the offending piece was published "for the purposes of criticism or review". This court should not in my view give any encouragement to the notion that all that is required is for the user to have sincere belief, however misguided, that he or she is criticising a work or reporting current affairs. To do so would provide an undesirable incentive for journalists, for whom facts should be sacred, to give implausible evidence as to their intentions. The point is illustrated by two cases to which the court was referred, Hindley v Higgins and News Group Newspapers Ltd (unreported) 24 August 1983; Court of Appeal (Civil Division) Transcript No. 830 of 1983 and Associated Newspaper Group Plc v Newsgroup Newspapers Ltd [1986] RPC 515."
22. It follows that the first task of the court is to read the relevant parts of The Sun of 2nd September to ascertain what was the perceived purpose of the use of work, so as to decide whether it was or was not "for the purpose of reporting current events". I therefore turn to the article in The Sun of 2nd September 1998.
23. Most of the front page is taken up by the words "Fayed's Diana Lies". There follow these phrases "'Marriage' to son Dodi was a sickening sham"; "Tycoon hid behind 'MI5 murder' claim." The rest of the front page consists of a picture of Mr Al Fayed above which appears the words "World Exclusive Bodyguard Speaks Out". Below the picture is the start of an article written by Mr Thompson. It opens in this way:
"Tycoon Mohamed Al Fayed told a string of sickening lies in a bid to make the world believe Princess Diana was going to marry his son Dodi, The Sun can reveal.
The Harrods boss ordered aides to deceive millions of people into believing the couple were about to get engaged when they died a year ago.
And he told staff to announce the couple planned to live at the Al Fayed- owned Villa Windsor in Paris.
The astonishing claims were made by one of the multi-millionaire's most trusted bodyguards.
Ex-marine Ben Murrell, 33 - at the heart of Al Fayed's security for three years - also told how his boss:
ORDERED a butler to lie about Diana's visit to the Villa Windsor on August 30 last year- the day before she was killed in a car smash;
CLAIMED Diana had made a previous visit to the mansion - with an Italian interior designer;
WANTED another bodyguard to lie on TV about Dodi and Diana, 36, getting engaged;
TOLD staff to "get to" Dodi's minder Trevor Rees-Jones who survived the crash, before he could make a statement to police and British embassy officials;
Made the ridiculous statement that Rees-Jones was part of an MI5 CONSPIRACY to kill Di and Dodi. ..."
24. The article continues on pages 4 and 5. The driveway stills are reproduced on page 4 and cover over a third of the page. The first still shows a car parked in a driveway with a man and a woman who appear to have got out of the car and to be approaching the entrance of a house. The man and woman are ringed and the caption points out that the picture shows the Princess and Mr Dodi Fayed arriving at the Villa Windsor "where Al Fayed claims Di intended to live". At the bottom right-hand of the still is the date and the time it was taken, namely 15.47. The second still shows a woman leaving the house and approaching the car in the driveway. The time is recorded as 16.15. The caption states "Diana walks out of the house alone to leave after 28 minutes - yet Al Fayed said she spent two hours there". The third still shows two vehicles driving away at 16.18.
25. A heading "VIDEO THAT SHAMES FAYED" stretches across pages 4 and 5. Underneath the heading on page 4 are the words "It proves Di was not setting up house with Dodi says Ben Murrell, Fayed's ex-minder." The article which starts on page 4 continues on page 5. It sets out what Mr Murrell told The Sun. The opening paragraphs state:
"This is the vital video which proves Mohamed Al Fayed LIED about Princess Diana's love for his son Dodi.
Three black and white stills from the film show Diana was at Al Fayed- owned Villa Windsor in Paris for only 28 minutes - nowhere near the two hours claimed by the Harrods tycoon.
The pictures - never seen before - are taken from a security video shot as Di and Dodi visited the villa the day before they died. And the mansion's former head of security Ben Murrell says they show the Princess was NOT considering setting up home with Dodi - contrary to Al Fayed's constant claims.
Special Boat Squadron veteran Ben, 33, said "They did not give me the impression of a couple who were looking round a house with a view to moving in.
"Diana was not that interested and Dodi was showing it off to her because they were his father's instructions.
"Diana seemed as if she wanted to get the visit over as quickly as possible and get out of the place."
26. Page 5 contains pictures of the Princess and Mr Dodi Fayed on holiday, the Villa Windsor and Mr Murrell in one of the bedrooms. Underneath those pictures are what are described as the "Fayed File". That is a table containing five lies put out by Mr Al Fayed set against what are said to be the truth. Page 5 also contains an attack by Mr Murrell on the way that Mr Al Fayed dealt with a dog called Bruno.
27. As the headline of The Sun of 2nd September makes clear, the driveway stills are part of an exposure of the false statements of Mr Al Fayed that had been disseminated in the way set out in the pleading which I have quoted.
28. The judge concluded, in the passage I have quoted, that the relevant current events reported were the events of 30th August 1997. They remained, in his view, current due to the continued publicity. Mr Spearman supported that conclusion. He submitted that events, such as tragedies in which people are killed, continue to be current events so long as the events themselves continue to feature in the news. It would be astonishing if works, for examples parts of films of events or statements of eyewitnesses, ceased to be available for lawful use for the purpose of reporting such events at some arbitrary moment during the time when, as in this case, they were still enormously and unceasingly in the news.
29. Mr Bloch submitted that that submission failed to take account of the difference between events which were no longer current but were of continued interest. For example on fiftieth anniversary of the D-Day landings there was renewed interest in those events, but the landings themselves were not current events and the renewed interest did not mean that they regained their currency.
30. Mr Bloch's submission that the events that happened on 30th August 1997 were no longer current on 2nd September 1998 has, in my view, force; but I do not believe it right, upon an application for Order 14 judgment, to reject the defence of fair dealing upon that basis. The investigation into the events of the night of 30th and the morning of 31st August was continuing and therefore the events had an element of currency. However the driveway stills were not used in The Sun of 2nd September 1998 for the purpose of reporting the events of 30th and 31st August 1997. The clear purpose and context were to expose the false statements of Mr Al Fayed and to vilify him. They were used, as the headline on pages 4 and 5 stated as the "VIDEO THAT SHAMES FAYED". Therefore adopting the objective approach required by the Court of Appeal in Pro-Sieben AG the defence of fair dealing could not succeed on this basis.
31. Mr Spearman anticipated that it might be held that the events of 30th and 31st August were not the current events being reported in The Sun. His primary submission was that the driveway stills were used for the purpose of reporting current events at the time, namely the media coverage that had been generated by Mr Al Fayed's string of falsehoods that had been reported, the most recent being in the 31st August 1998 edition of The Mirror.
32. For the purposes of this appeal I accept that such media coverage can be described as "current events" when those words are construed liberally, although the judgment of Walton J in Associated Newspapers Group Plc v News Group Newspapers Ltd [1986] RPC 515 and that of Lightman J in Newspaper Licensing Agency v Marks and Spencer [1999] RPC 536 provide good reasons for the contrary view. That being so, I will assume that the use made of the driveway stills was for the purpose of reporting that coverage. I therefore come to consider whether the use made was fair dealing and to review the cases where guidance has been given as to the way the words "fair dealing" should be applied.
33. British Oxygen Company Limited v Liquid Air Limited [1925] 1 Ch 383 was a case in which the plaintiff alleged breach of copyright by publication of a letter. The defence of fair dealing was rejected by Romer J. At page 393 he said:
"But I need not consider this further, and for this reason; the Act no doubt extends to unpublished as well as published works, and, accordingly, this permission of criticism would seem at first sight to extend to unpublished literary works. The permission was no doubt necessary in the case of unpublished dramatic and musical works, inasmuch as performance in public of such works is not publication for the purposes of the Act. But it would be manifestly unfair that an unpublished literary work should, without the consent of the author, be the subject of public criticism, review or newspaper summary. Any such dealing with an unpublished literary work would not, therefore, in my opinion, be a "fair dealing" with the work. This being so s. 2 sub-s. 1, of the Act does not assist the defendants. In any case I cannot see that it was necessary for the defendants, for the purposes of criticism, to have photographic copies of the work prepared, and to send one of those copies to a broker on the London Stock Exchange for perusal by him and by the defendants' jobber friends."
34. Lord Denning MR in Hubbard v Vosper [1972] 2 QB 84 qualified the view expressed by Romer J. He said at page 94:
"I am afraid I cannot go all the way with those words of Romer J. Although a literary work may not be published to the world at large, it may, however, be circulated to such a wide circle that it is "fair dealing" to criticise it publicly in a newspaper or elsewhere. This happens sometimes when a company sends a circular to the whole body of shareholders. It may be of such general interest that it is quite legitimate for a newspaper to make quotations from it, and to criticise them - or review them - without thereby being guilty of infringing copyright. The newspaper must, of course, be careful not to fall foul of the law of libel. So also here, these bulletins and letters may have been so widely circulated that it was perfectly "fair dealing" for Mr Vosper to take extracts from them and criticise them in his book."
In that passage Lord Denning had in mind the facts of that case where the works in which copyright was claimed had been widely circulated amongst followers of the Church of Scientology. However the general thrust of the conclusion of Romer J remained, namely that it was difficult to imagine that it could be fair dealing to use a work that had not been published nor circulated to persons for the purposes of criticism, review or newspaper reporting.
35. Lord Denning also said in Hubbard that it was impossible to define what is "fair dealing"; but when considering whether the dealing was fair it was appropriate to take account of the use made of the infringing work in extent and purpose. To that I would add the second reason why Romer J rejected the defence in British Oxygen, namely whether the use was necessary for the purpose, in this case of reporting the current events.
36. In Beloff v Pressdam Ltd [1973] 1 AER 241, a member of the staff of The Observer sued the publishers of the magazine Private Eye who had published a memorandum of the plaintiff which had been circulated amongst the employees of The Observer. Ungoed-Thomas J rejected the defence of fair dealing. He pointed out that the relevant fair dealing must be fair dealing for the approved purpose and not dealing which might be fair for some other purpose or fair in general. He said that what amounts to fair dealing is a question of fact and impression and that matters which had been held to be relevant included the extent and importance of the quotation, whether the work was unpublished, the extent to which the work had been circulated and the motives and intention of the alleged infringer. As Ungoed-Thomas J pointed out at page 263:
"The law by bestowing a right of copyright on an unpublished work bestows a right to prevent its being published at all; and even though an unpublished work is not automatically excluded from the defence of fair dealing, it is yet a much more substantial breach of copyright than publication of a published work."
37. I have already quoted the extract from Robert Walker LJ's judgment in Pro Sieben AG in which he accepted that the motives of the user were relevant when considering whether the dealing was fair. Thus the cases establish, and I believe it right, that it is appropriate to take into account the motives of the alleged infringer, the extent and purpose of the use, and whether that extent was necessary for the purpose of reporting the current events in question. Further if the work had not been published or circulated to the public that is an important indication that the dealing was not fair.
38. As section 1 of the 1988 Act makes clear, copyright is a property right. It "is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property" (section 90). But the defence of fair dealing is not affected by any assignment. Section 30 looks at the use made of the copyright work, not who the owner was or is. Thus the Court must judge the fairness by the objective standard of whether a fair minded and honest person would have dealt with the copyright work, in the manner that The Sun did, for the purpose of reporting the relevant current events, in this case the published untruthful statements of Mr Al Fayed.
39. Mr Spearman submitted that such a man would have dealt with the copyright work in just the same way that The Sun had. He submitted that the driveway stills exposed the lie which brought down the pack of lies. The fact that the Princess and Mr Dodi Fayed only stayed 28 minutes at the Villa Windsor was at the heart of the false assertion that they were going to be married. The motive was to report the untrue statements, the extent was necessary to prove the lies as the driveway stills were the only piece of hard evidence available.
40. I reject Mr Spearman's submission. I have come to the conclusion that the defence of fair dealing cannot succeed. I do not believe that a fair minded and honest person would pay for the dishonestly taken driveway stills and publish them in a newspaper knowing that they had not been published or circulated when their only relevance was the fact that the Princess and Mr Dodi Fayed only stayed the 28 minutes at the Villa Windsor - a fact that was known and did not establish that the Princess and Mr Dodi Fayed were not to be married. To describe what The Sun did as fair dealing is to give honour to dishonour. Further the extent of the use was excessive. The only part of the driveway stills relevant to the alleged purpose was the information as to the timing of arrival and departure. That information could have been given in the articles by Mr Thompson stating that he had seen the photographs which proved the Princess and Mr Dodi Fayed only stayed at the Villa Windsor for 28 minutes. If he needed confirmation he could have relied upon the statement by Mr Cole. Despite that The Sun used the driveway stills so that they covered over one third of page 4. The information as to the time of arrival and departure did not establish that Princess Diana and Mr Dodi Fayed were not going to be married nor that the other statements made by Mr Al Fayed, that are said to be untrue, were false.
41. The suggestion that the use of the driveway stills was a fair dealing for the purposes of reporting the events of 30th August 1997 is, to draw upon the words of Henry LJ in Time Warner v Channel 4 TV [1994] EMLR 1 at 14, an attempt to dress up the infringement of Hyde Park's copyright in the guise of reporting an event. In my view the judge came to the wrong conclusion and the allegation of fair dealing by the defendants could not provide them a defence to the action.
Public Interest
42. Before the judge Mr Bloch submitted that there was no defence of public interest to an action for infringement of copyright. He accepted that over the years a number of judges had expressed the contrary conclusion, but he submitted that they were wrong. Alternatively, if such a defence existed then it could not succeed in this case. The judge rejected both those submissions. Mr Bloch submitted in this Court that the judge was wrong to do so.
43. Mr Bloch's submission that no public interest defence exists starts with an analysis of the 1988 Act. As he correctly pointed out, copyright is an intellectual property right provided for by the 1988 Act. That Act contains detailed provisions in the 51 sections in chapter III of Part I of the types of acts that are permitted to be carried out by persons without the copyright owner's consent. They range from fair dealing to use for education, by libraries and for public administration. They are, as he submitted, provisions directed towards achieving a proper balance between the protection of copyright, and the wider public interest. They would therefore appear to set out in detail the extent to which the public interest overrides copyright. I agree. The 1988 Act does not give a court general power to enable an infringer to use another's property, namely his copyright in the public interest. Thus a defence of public interest outside those set out in Chapter III of the 1988 Act, if such exists, must arise by some other route.
44. The courts have an inherent jurisdiction to refuse to allow their process to be used in certain circumstances. It has long been the law that the courts will not give effect to contracts which are, for example, illegal, immoral or prejudicial to family life because they offend against the policy of the law. In my view that inherent jurisdiction can be exercised in the case of an action in which copyright is sought to be enforced as is made clear by section 171(3) of the 1988 Act:
"171(3) Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise."
45. As Mr Bloch submitted, that subsection should not be interpreted so as to interfere with a private property right without compensation as no clear intention to that effect is expressed. I also accept Mr Bloch's submission that refusal of relief upon equitable principles is not a defence to an action for infringement of copyright under the 1988 Act.
46. The judge set out examples on page 18 of his judgment which he said established the need for a public interest defence. He said:
"One can also legitimately test the whole question of the existence of a public interest defence, and the suggestion that there can be a restriction on enforcement only in respect of discretionary remedies against extreme examples. This is because the question is not limited to any particular sort of case. Thus, take a case where a document, carefully researched and compiled by a team of bank robbers, indicated the precise weaknesses of the security systems of each of the branches of a major bank. Copyright is normally accorded to carefully and skilfully compiled lists as being original work. But it can hardly be the law that the police could not make copies of the list to give to the bank and its security advisors. Nor does it make sense to say that the robbers could sue at least for nominal damages if the police did so. Or suppose the police obtained from a security video a picture of a bank robber. Do they really have to get the permission of a copyright owner (perhaps not readily identifiable in a hurry) before showing the picture of the robber on television when seeking the help of the public to track him down? And if they do not do so, could the copyright owner really sue for nominal damages? The questions only have to be asked to be answered. Other extreme cases come readily to mind."
47. Mr Bloch submitted that those extreme examples did not show the need for a public interest defence. They were perhaps examples of the defence of necessity that was recognised in actions of tort.
48. In my view the examples given by the judge do show why the courts refuse in certain circumstances to enforce copyright. To enforce copyright in a document prepared for a bank robbery would offend against principles of public order and morality and a court would be amply justified in refusing to enforce copyright in such a document under its inherent jurisdiction. Such an exercise of the court's inherent jurisdiction would be akin to a refusal to enforce an agreement which was illegal. As to the right of the police to publish a picture of a robber without permission of a copyright owner, I have some doubts as to whether in all cases they could lawfully do so, but no court would allow its process to be used to obstruct the course of justice. A court has, under its inherent jurisdiction, the right to refuse to enforce an action for infringement of copyright just as it can refuse to enforce a contract or other cause of action which offends against the policy of the law. The more difficult question is to define the circumstances when that is the appropriate course.
49. There have been a number of cases where the courts have refused to enforce copyright as the works in question were considered libellous, immoral, obscene, scandalous or irreligious. As the driveway stills are not of that type, I need not revert to those cases and can start with Beloff v Pressdam (supra). In that case, it was argued that publication of a memorandum about Mr Maudling was justified both as fair dealing and in the public interest. Ungoed-Thomas J held that the two defences existed and were separate defences. In relation to the defence of public interest he said at page 259:
"The most important recent cases referred to were the Court of Appeal cases, Initial Services Ltd v Putterill [[1968] 1 QB 396] and of Hubbard v Vosper [[1972] 2 WLR] (where the claims were for infringement of copyright and also for breach of confidence).
The Initial Services case [supra] was on appeal to strike out certain provisions in the defence relying, in justification of disclosure of confidential information, on its exposure first of breach of statutory duty to register a restrictive trade agreement and secondly that a circular issued by the plaintiffs to their customers attributing increases in their charges to the selective employment tax was misleading to the public. Lord Denning MR said [at page 405] that the exception to the obligation not to disclose confidential information -
`extends to any misconduct of such a nature that it ought in the public interest to be disclosed to others. Wood, V-C, put it in a vivid phrase: "There is no confidence as to the disclosure of iniquity." In Weld-Blundell v Stephens [[1919] 1 KB 520] Bankes, LJ, rather suggested that the exception was limited to the proposed or contemplated commission of a crime or a civil wrong. But I should have thought that was too limited. The exception should extend to crimes, frauds and misdeeds, both those actually committed as well as those in contemplation, provided always - and this is essential - that the disclosure is justified in the public interest. The reason is because "no private obligations can dispense with that universal one which lies on every member of the society to discover every design which may be formed, contrary to the laws of the society, to destroy the public welfare": see Annesley v Earl of Anglesea [(1743) 17 State Tr. 1139]."
And Salmon LJ said at page 410:
`I do not think that the law would lend assistance to anyone who is proposing to commit and to continue to commit a clear breach of a statutory duty imposed in the public interest.'
In that case publication, justifiable in the public interest, was considered to extend beyond exposure of what appears, at first blush, to have been meant by `contrary to the laws of the society' as stated in Earl of Anglesea, although not, as I see it, beyond `disclosure of iniquity' in Wood, V-C's phrase.
In Hubbard v Vosper [supra], Lord Denning MR treated material on scientology published in breach of confidence as susceptible to a defence of public interest on the ground that it was dangerous material, namely medical quackeries `dangerous in untrained hands'.
The defence of public interest clearly covers and, in the authorities does not extend beyond disclosure, which as Lord Denning emphasised must be disclosure justified in the public interest, of matters carried out or contemplated, in breach of the country's security, or in breach of law, including statutory duty, fraud or otherwise destructive of the country or its people, including matters medically dangerous to the public: and doubtless other misdeeds of similar gravity. Public interest, as a defence in law, operates to override the rights of the individual (including copyright) which would otherwise prevail and which the law is also concerned to protect. Such public interest, as now recognised by the law, does not extend beyond misdeeds of a serious nature and importance to the country and thus, in my view, clearly recognisable as such."
51. Ungoed-Thomas J cited two cases. The first, Initial Services Ltd v Putterill [1960] 1 QB 396 was a decision of the Court of Appeal refusing to strike out a defence in an action in which breach of confidence by an ex-employee was alleged. The court held that the defendant might establish at trial that the public interest demanded, or at least, excused, publication to the press. It is not an authority which established that a defence to an allegation of infringement of copyright, as opposed to the use of information, was available provided that the infringement was in the public interest.
52. The second case was Hubbard v Vosper [1972] 2 QB 84. In that case the Court of Appeal refused to grant an interlocutory injunction restraining breach of confidence or breach of copyright. All three judges held that there was an arguable defence to the action for breach of copyright and that in the circumstances of that case an interlocutory injunction would not be appropriate. They also held that there were good grounds for thinking that the information should be made known in the public interest. It is important to note that a public interest defence was not raised as a defence to the allegation of infringement of copyright. The crux of the conclusion is illustrated by these words of Lord Denning MR at page 96:
"But here, although Mr Hubbard owns the copyright, nevertheless, Mr Vosper has a defence of fair dealing: and although Mr Hubbard may possess confidential information, nevertheless, Mr Vosper has a defence of public interest. These defences are such that he should be permitted to go ahead with the publication. If what he says is true, it is only right that the dangers of this cult should be exposed. We never restrain a defendant in a libel action who says he is going to justify. So in copyright action, we ought not to restrain a defendant who has a reasonable defence of fair dealing. Nor in an action for breach of confidence, if the defendant has a reasonable defence of public interest. The reason is because the defendant, if he is right, is entitled to publish it: and the law will not intervene to suppress freedom of speech except when it is abused."
53. A similar position arose in Fraser v Evans [1969] 1 QB 349 where the Court of Appeal considered a defence of public interest to the claim for breach of confidence, but not in respect of the claim for breach of copyright.
54. There are other cases where the courts have refused to grant interlocutory injunctions to restrain a breach of confidence upon the basis of public interest. The principle is, as stated by Lord Denning MR in Woodward v Hutchins [1977] 1 WLR 760 at 764:
"In these cases of confidential information it is a question of balancing the public interest in maintaining the confidence against the public interest in knowing the truth."
55. That principle has particular relevance to an action for breach of confidence. Such an action is brought to enforce an obligation of confidence in respect of information of a confidential nature imparted in circumstances where the courts import an obligation of confidence (see Coco v Clark (Engineers) Ltd [1969] RPC 41). The court can therefore weigh the public interest in knowing the truth against the public interest in maintaining the confidence in the light of the facts of each case. That cannot be the test to be applied where copyright infringement has taken place for three reasons. First copyright is a property right which is given by the 1988 Act. Chapter III of the Act provides for exceptions in the public interest. It would therefore be wrong for a court which had rejected a defence of, for example fair dealing, because there was not a sufficient acknowledgement, to uphold a defence because publication was in the public interest. That would result in a disregard of an important requirement set out in the Act. Second, copyright is concerned with protection of the form of works in which copyright can subsist and not with protection of information. That can be illustrated with the facts of the present case. Nobody has suggested nor could it be suggested that the information recorded on the driveway stills could be the subject of copyright nor that use of that information would be an infringement of the copyright which subsists in the film. It follows that the weighing operation is not apt when the information can be published even though the action for infringement of copyright succeeds. Third, the 1988 Act gives effect to the United Kingdom's obligations pursuant to the Paris and Berne Conventions and certain European Union Directives. Those Conventions came into being to provide for uniform and effective protection of copyright amongst the signatories. Article 10 of the Berne Convention allows quotations from copyright works provided that the quotation is compatible with fair practice. Section 30 of the 1988 Act is thought to be within the terms of that Article. However there is no general power for courts of the signatories to such Conventions to refuse to enforce copyright if it is thought to be in the public interest of that State that it should not be enforced. Thus a general defence of public interest would appear to be contrary to this country's international obligations.
56. Mr Spearman relied heavily on Lion Laboratories Ltd v Evans [1985] QB 526. Lion Laboratories manufactured and marketed the Lion Intoximeter which was used by the police for measuring blood alcohol levels of motorists. In the early part of 1984 two ex-employees approached the Press with four documents taken from Lion Laboratories. Those documents indicated that the Lion Intoximeter had faults which could have resulted in a significant number of motorists being wrongly convicted. On 8th March 1984, Lion Laboratories started proceedings against their ex-employees and Express Newspapers Limited to restrain disclosure of the information as to the faults. They obtained an interlocutory injunction restraining breach of confidence and infringement of copyright. The defendants appealed to the Court of Appeal which allowed the appeal.
57. The documents contained confidential information and it was not disputed that it would have been a breach of confidence to publish the information in them and an infringement of copyright to publish the documents themselves unless there were defences which permitted that in the public interest. Stephenson LJ concluded that the judge was "right to make no difference between confidence and copyright for the purposes of this case" and therefore did not consider them separately. He went on at page 536:
"The problem before the judge and before this court is how best to resolve, before trial, a conflict of two competing public interests. The first public interest is the preservation of the right of organisations, as of individuals, to keep secret confidential information. The courts will restrain breaches of confidence, and breaches of copyright, unless there is just cause or excuse for breaking confidence or infringing copyright. The just cause or excuse with which this case is concerned is the public interest in admittedly confidential information. There is confidential information which the public may have a right to receive and others, in particular the press, now extended to the media, may have a right, and even a duty to publish, even if the information has been unlawfully obtained in flagrant breach of confidence and irrespective of the motive of the informer. The duty of confidence, the public interest in maintaining it, is a restriction on the freedom of the press which is recognised by our law, as well as by article 10(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969); the duty to publish, the countervailing interest of the public in being kept informed of matters which are of real public concern, is an inroad on the privacy of confidential matters. So much is settled by decisions of this court, and in particular by the illuminating judgments of Lord Denning, MR in Initial Services v Putterill [1968] 1 QB 396; Fraser v Evans [1969] 1 QB 349; Hubbard v Vosper [1972] 2 QB 84; Woodward v Hutchins [1977] 1 WLR 760; and per Lord Denning MR (dissenting) in Schering Chemicals Ltd v Falkman Ltd [1982] QB 1. I add to those the speeches of Lord Wilberforce, Lord Salmon and Lord Fraser of Tullybelton in British Steel Corporation v Granada Television Ltd [1981] AC 1096.
There are four further considerations. First, "there is a wide difference between what is interesting to the public and what it is in the public interest to make known" said Lord Wilberforce in British Steel Corporation v Granada Television Ltd, at p. 1168. The public are interested in many private matters which are no real concern of theirs and which the public have no pressing need to know. Secondly, the media have a private interest of their own in publishing what appeals to the public and may increase their circulation or the numbers of their viewers or listeners; (and I quote from Sir John Donaldson MR in Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892, 898B, "they are peculiarly vulnerable to the error of confusing the public interest with their own interest." Thirdly, there are cases in which the public interest is best served by an informer giving the confidential information, not to the press but to the police or some other responsible body, as was suggested by Lord Denning MR in Initial Services Ltd v Putterill [1968] 1 QB 396, 405-406 and by Sir John Donaldson MR in Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892, 898. Fourthly, it was said by Wood V-C in 1856, in Gartside v Outram (1856) 26 L.J.Ch. 113, 114, "there is no confidence as to the disclosure of iniquity": and though Mr Hoolahan concedes on the plaintiffs' behalf that, as Salmon LJ said in Initial Services Ltd v Putterill [1968] 1 QB 396, 410, "what was iniquity in 1856 may be too narrow or ... too wide for 1967," and in 1984 extends to serious misdeeds or grave misconduct, he submits that misconduct of that kind is necessary to destroy the duty of confidence or excuse the breach of it, and nothing of that sort is alleged against the plaintiffs in the evidence now before the court.
Mr Alexander, on behalf of the third and fourth defendants, and Mr Bloch on behalf of the first and second defendants, have not been able to find any case where a defendant has been able to rely on public interest in defence of a claim for breach of confidence and the plaintiff has not also been guilty of such misconduct. And there are passages in the speeches of Lord Wilberforce and Lord Fraser of Tullybelton in British Steel Corporation v Granada Television Ltd [1981] AC 1096, 1165, 1195 in which they appear to be satisfied with describing the "public interest rule" as the "iniquity rule". But I nowhere find any authority for the proposition, except perhaps in the judgment of Ungoed-Thomas in Beloff v Pressdam Ltd [1973] 1 All ER 241, 260, that some modern form of iniquity on the part of the plaintiffs is the only thing which can be disclosed in the public interest; and I agree with the judge in rejecting the "no iniquity, no public interest" rule; and in respectfully adopting what Lord Denning said in Fraser v Evans [1969] 1 QB 349, 362, that some things are required to be disclosed in the public interest, in which case no confidence can be prayed in aid to keep them secret, and "[iniquity] is merely an instance of just cause or excuse for breaking confidence."
58. The extracts from the cases relied on by Stephenson LJ, to support the conclusion he reached were cases concerned with allegations of breach of confidence. In fact the whole passage is concerned with confidential information, save for the three words "or infringing copyright" in the third sentence. That is not surprising as the dispute before the court revolved around the information as to the Intoximeter which was known to the ex-employees and was contained in the documents. The relief needed by Lion Laboratories was an injunction to restrain dissemination of the information and if that was obtained the documents could not have been published. Therefore an injunction restraining infringement of copyright was in practice irrelevant although part of the package thought necessary to prevent disclosure. That appears to have been the reason why the parties and the court did not feel it necessary to consider the actions for breach of confidence and infringement of copyright separately. Stephenson LJ said at p. 540:
"What makes this case so special is that the plaintiffs' right to keep inviolate the secrecy of the information which the defendants wish to publish is undisputed, and the only question for interlocutory decision is whether that right is outweighed by the public interest, not in exposing persons who may be guilty of offences for which they have not been punished, but in disclosing the risk of the plaintiffs being instrumental in punishing other people for offences which they may not have committed."
59. His conclusion was:
"The issue raised by the defendants is a serious question concerning a matter which affects the life, and even the liberty of an unascertainable number of Her Majesty's subjects and though there is no proof that any of them has been wrongly convicted on the evidence of the plaintiffs' Intoximeter, and we certainly cannot decide that any has, we must not restrain the defendants from putting before the public this further information as to how the Lion Intoximeter 3000 has worked, and how the plaintiffs regard and discharge their responsibility for it, although the information is confidential and was unlawfully taken in breach of confidence."
60. The Lion Laboratories case was considered by Sir Nicholas Browne-Wilkinson VC in Express Newspapers Plc v News (UK) Plc [1991] FSR 36. He concluded at page 45:
"In my judgment, that decision has no application to the present case. Where that type of defence is put forward it permits the publication of secret information which it is in the public interest should be known. It does not apply to information of the kind which it may be of interest to the public to know. Moreover, the basis of the defence being that the public needs to know, the whole basis for the defence goes once such information has been disclosed to all, i.e. by one paper. There is no further requirement of public interest that another paper should be able to repeat the revelation of that information."
61. The judge in this case reviewed the authorities in depth. As to the Lion Laboratories case, he said at page 13:
"The upshot of Mr Bloch's analysis, which I think is correct, is that neither in Beloff nor in Lion was there any substantial basis in precedent for the judges' conclusions that a defence of public interest existed."
62. I agree with the judge's conclusion. He also correctly pointed out that the Lion Laboratories case was cited with approval in A-G v Guardian Newspapers No.2 [1990] 1 AC 109. There are however indications in the speeches as to the correct approach to the defence of public interest in a copyright action. Lord Griffiths said at page 275:
"If Peter Wright owns the copyright in Spycatcher, which I doubt, it seems to me extremely unlikely that any court in this country would uphold his claim to copyright if any newspaper or any third party chose to publish Spycatcher and keep such profits as they might make to themselves. I would expect a judge to say that the disgraceful circumstances in which he wrote and published Spycatcher disentitled him to seek the assistance of the court to obtain any redress: see Glyn v Weston Feature Film Co. [1916] 1 Ch. 261."
63. Lord Jauncey said at page 294:
"The courts of the United Kingdom will not enforce copyright claims in relation to every original literary work. Equitable relief has been refused where the work contained false statements calculated to deceive the public (Slingsby v Bradford Patent Truck and Trolley Co [1905] WN 122; [1906] WN 51) and where the work was of a grossly immoral tendency (Glyn v Weston Feature Film Co [1916] 1 Ch. 261. In a passing-off action, Bile Bean Manufacturing Co v Davidson (1906) 23 RPC 725 the Second Division of the Court of Session refused relief to a company which had perpetrated a deliberate fraud on the public by a series of false factual statements about its products. Lord Justice-Clerk Lord Macdonald said, at p. 734:
`No man is entitled to obtain the aid of the law to protect him in carrying on a fraudulent trade, but the cases quoted at the debate by the Lord Ordinary establish, as I think, very clearly that the courts have in the past given effect to the principle which allows nothing to the man who comes before the seat of justice with a turpis causa.'
The publication of Spycatcher was against the public interest and was in breach of the duty of confidence which Peter Wright owed to the Crown. His action reeked of turpitude. It is in these circumstances inconceivable that a United Kingdom court would afford to him or his publishers any protection in relation to any copyright which either of them may possess in the book."
64. I have pointed out earlier in this judgment that the basis of the defence of public interest in a breach of confidence action cannot be the same as the basis of such defence to an action for infringement of copyright. In an action for breach of confidence the foundation of the action can fall away if that is required in the public interest, but that can never happen in a copyright action. The jurisdiction to refuse to enforce copyright, which I believe has been recognised comes from the court's inherent jurisdiction. It is limited to cases where enforcement of the copyright would offend against the policy of the law. The Lion Laboratories case was such a case. Lion Laboratories sought to obtain an interlocutory injunction to restrain publication of documents which showed that they had suppressed information leading to or which might lead to the wrongful conviction of motorists. The action was based upon documents which in the circumstances reeked of turpitude. As Lord Mansfield CJ said in Holman v Johnson (1775) 1 Cowp 341 at 343:
"No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act."
65. To rely upon copyright to suppress documents which could exonerate motorists convicted of drink driving or which might lead to their acquittal is, in my view, to found a cause of action upon an immoral act.
66. The circumstances where it is against the policy of the law to use the court's procedure to enforce copyright are, I suspect, not capable of definition. However it must be remembered that copyright is assignable and therefore the circumstances must derive from the work in question, not ownership of the copyright. In my view a court would be entitled to refuse to enforce copyright if the work is:
(i) immoral, scandalous or contrary to family life;
(ii) injurious to public life, public health and safety or the administration of justice;
(iii) incites or encourages others to act in a way referred to in (ii).
67. Mr Spearman's submission that the driveway stills needed to be published in the public interest to expose the falsity of the statements made by Mr Al Fayed has no basis in law or in logic. Perhaps the driveways stills were of interest to the public, but there was no need in the public interest in having them published when the information could have been made available by The Sun without infringement of copyright and was in any case in the public domain after the statement by Mr Cole on behalf of Mr Al Fayed. The driveway stills contained nothing, nor was there any circumstance relating to them which could require the court to refuse to enforce the statutory property right provided by the 1988 Act. The only possible defence in respect of the copyright work, of which the driveway stills were part, was fair dealing.
68. For the reasons expressed, I would allow the appeal and give judgment for Hyde Park.
LORD JUSTICE MANCE:
69. I gratefully adopt the account of the facts given by Aldous L.J in his judgment and agree with him in the result and in most of his reasoning. I have however some reservations about the matter, which I feel that I should express. The first relates to the nature of the application before the Court. The claimants have chosen to select the claim in copyright, and to seek summary judgment upon it alone. Claims are included in the writ for breach, or procuring or inducing breach, of the employment contract and/or confidentiality agreement dated 4th February 1996 between the appellants and the fourth defendant, Mr Murrell, as well as for breach of confidence by Mr Murrell. These claims and the possible defences to them have not been considered. Whether or not, in the light of our decision, they will now be pursued remains to be seen. But it is unfortunate in my view that it has not been possible to consider the whole picture. This is particularly so, when much of the argument revolves around potential distinctions between a proprietary claim for breach of copyright and personal claims for breach, or procuring or inducing breach of contract, and to restrain use of confidential information. When and if the damages recoverable for breach of copyright are assessed, the extent to which the information contained in the driveway stills, about the timing of the visit to Villa Windsor on 30th August 1997, could anyway have been used, if there had been no reproduction of the stills, may itself be material to any damages recoverable. Bearing in mind the other photographic material in the public arena relating to the Princess of Wales and Mr Dodi Fayed, these poor quality and distant stills can hardly have had much if any value apart from the information recorded in them about timings.
70. Both the suggested defences of fair dealing and public interest must be considered in the light of the particular circumstances. The Sun was, as Aldous L.J. has shown, seeking to expose the falsity of statements disseminated on various occasions by Mr Fayed senior. The Sun's essential justification for its conduct is that publication of the stills was like the removal of the card which brings the whole pack down.
71. In Woodward v. Hutchins [1977] 1 WLR 760, this Court discharged an interlocutory injunction which had been granted to restrain the disclosure of confidential information obtained by a press relations agent to a well-known pop group, starring Tom Jones and Engelbert Humperdinck. As the group's press agent, the defendant's role had been to see that the group received favourable publicity. However, after parting company, amicably, with the group, the defendant disclosed "no doubt, for a very considerable reward" to the Daily Mirror "secrets" about the group, including episodes of allegedly discreditable nature involving drink, sex and other matters. Lord Denning said at pp.763H-764A:
"If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected. In these cases of confidential information it is a question of balancing the public interest in maintaining the confidence against the public interest in knowing the truth."
72. Bridge L.J. added at p.765E:
"It seems to me that those who seek and welcome publicity of every kind bearing upon their private lives so long as it shows them in a favourable light are in no position to complain of an invasion of their privacy which shows them in an unfavourable light."
73. That principle is of obvious significance to any attempt by the claimants to claim redress for the disclosure by The Sun of the information obtained from Mr Murrell relating to the falsity of Mr Fayed senior's statements and Mr Fayed senior's attempts to enlist employees including Mr Murrell to give false accounts regarding the conduct of Diana Princess of Wales with Mr Dodi Fayed. The claimants and Mr Fayed have been treated before us as synonymous. An employer who himself and through agents or employees puts forward to the public an untrue story stands on weak ground in insisting that employees, all the more others who refuse to participate, owe a duty of confidence requiring them not to disclose the true position. Mr Fayed was and is a figure in the public eye. The events about which he put forward to the public a false picture were events in the public eye. It seems to me therefore that we should approach the present application on an assumption that the claimants can have no claim for, or for inducing or procuring, breach of contract or for misuse of confidential information.
74. This is quite apart from the point that Mr Fayed's conduct in seeking to enlist Mr Murrell in public lies at the end of July 1998 led directly to Mr Murrell tendering his resignation on 7th August 1998 with immediate effect "[d]ue to the fact that I find my position untenable". That itself could well, it seems to me, be regarded as a discharge by accepted repudiation of any further contractual obligations or obligations of confidence on Mr Murrell's part.
75. Why then is the copyright claim to be viewed differently? The answer lies in my view in distinctions between confidential information and copyright, which are of particular significance in relation to any claim to have been entitled to publish the stills without the claimants' consent. Confidential information is information about A's affairs which B possesses, but in respect of which B may owe A a duty not to disclose the information to others. Confidence and secrecy on the one hand and disclosure and publication on the other lie at opposite ends of one and the same continuum. Protection of confidence depends on the force of A`s interest in maintaining secrecy. Freedom to publish depends on the force of competing considerations such as the public interest in knowing the truth.
76. Copyright is by contrast a property right, conferring on A alone the exclusive right to do certain acts in relation to certain works including sound recordings and films. It protects the form of such works and not any information which they contain as such. And it is regulated by stature. S.30 of the Copyright Act 1988 expressly allows fair dealing with certain works for the purpose of criticism or review or of reporting current events. Copyright does not lie on the same continuum as, nor is it the antithesis of, freedom of expression. The force of an owner's interest in the protection of his copyright cannot be weighed in the same direct way against a public interest in knowing the truth. S.171(3) of the Copyright Act expressly preserves the possibility that the enforcement of copyright may be prevented or restricted on grounds of public interest. But, there is an obvious need for caution about recognising any wider public interest in the same general area as addressed by s.30, while the different considerations applicable to confidential information and copyright must on any view make the exercise of identifying an overriding public interest a different one.
77. In the present case, I agree with Aldous L.J. that the use made of the driveway stills was not a fair dealing for the purposes of reporting either the events of 30th August 1997 (treating them as current events) or the continuing investigation and discussion during 1998 about those events and their significance, including in particular the theories put into the public arena by Mr Fayed senior. Mr Murrell's removal and supply to The Sun of the stills involved clear misappropriations of the stills (a word which I would prefer to use to theft, in order to avoid pre-judging a matter on which it is conceivable that there might be some scope for argument). The interest which in my view existed in exposing the general falsity of Mr Fayed senior's assertions did not, as a matter of fair dealing, require Mr Murrell's misappropriation of the stills or their supply to The Sun, presumably for money, or their publication by The Sun. In reaching this conclusion I recognise the force of the submission that (whatever The Sun said in its articles) these stills had in reality no significance save as recording information as to timings. The absence of any other merit or interest is a factor which, I would accept, may make it easier to conclude that it was "fair dealing" to publish the stills.

78. However, misappropriation and use of other people's property are not lightly to be regarded as fair dealing. Here, the correct information about timings had already been put into the public arena at an earlier stage by Mr Cole on behalf of Mr Fayed senior. And, even if it had not been, The Sun could have used the same information as supplied to them by Mr Murrell. The Sun argues that it was critical to reinforce its story in the public eye by publishing the stills. But, as Aldous L.J. has pointed out, the stills do not bear on what The Sun claimed about Diana Princess of Wales's love for Mr Dodi Fayed. Secondly, while they may destroy Mr Fayed's statements about the length of time spent by the two at Villa Windsor and so to some extent undermine his reasons for suggesting that it was clear that the two were in love and intending to marry, that point, for what it was worth, could have been made sufficiently without using misappropriated copyright material. Thirdly, the matter appears to me ultimately one of judgment and degree: if Mr Fayed's statements about a conspiracy to murder Diana Princess of Wales because of her love for his son had been anything other than ridiculous, and if the stills had had any real bearing on the inaccuracy of such statements, then one might have begun to see some basis for suggesting that "fair dealing" justified the overriding of the claimants' proprietary copyright interest. But that is not this case. Perhaps paradoxically, the transparent absurdity of Mr Fayed's allegations is thus a factor in the conclusion I reach that The Sun had no basis under s.30 for disregarding his company's proprietary copyright interest.
79. I also agree with Aldous L.J. that the case is not one where the public interest can supply a justification for the infringement of the claimants' copyright. My reasons for this conclusion echo what I have already said in the context of s.30. If the use made of the stills could not be fair dealing in the context of that section, it is difficult to see scope for a conclusion that it was nonetheless in the public interest that the claimants' copyright should be overridden.
80. I should however say something about Lion Laboratories Ltd. v. Evans [1985] QB 526. The difficulty which the case presents is that the claim to copyright protection in respect of the critical documents was evidently an important feature in it: see e.g. pp. 536C-D, 538D-E, 547E and H and 550A-B. Of course, the plaintiffs were concerned to restrain use of both the information and of the documents themselves, and O'Connor L.J. spoke of unauthorised use of confidential information as "the heart of the matter" (p.547H). But it was in terms of the use of the documents that the court considered the issues (see e.g. Stephenson L.J. at pp. 541A-542A, and Griffiths L.J. at p.552B-F). I cannot help thinking that, if the plaintiffs could have done in Lion, they would have done what the present claimants seek to do, that is condemn (and there prevent) the use of the documents irrespective of whether the information in them could be used. The Court in Lion refused both to prevent the use of the confidential information and to prevent the use of certain copyright material. Its reasons were that the public interest required each of these interests to be overridden. No distinction was drawn between the two interests. It may be, on the facts in Lion, that the publication which the newspaper wished to make could not realistically have been made without quoting large extracts from the relevant memoranda. The memoranda were certainly relevant for their contents as information, rather than as compositions. The Court may also have viewed the public interest in knowing the full position regarding the Intoximeter 3000 as so strong that it could, perhaps exceptionally, only be met by extensive publication of the documents.
81. One question which may be raised in relation to Lion is why no defence of "fair dealing" was mounted. The report indicates that the recently introduced Intoximeter 3000, to which the case related, and the convictions founded upon it were already the subject of lively public controversy (see e.g. pp.533G-534C, 539F-G and 542H-543A). The fact that the newspaper wished to publish hitherto unpublished internal memoranda may have been viewed as preventing reliance on s.30. Perhaps, the full scope of s.30 may not have been appreciated. Be that as it may, the case was argued and decided on the sole basis of public interest. But the fact that s.30 was not even considered does to my mind throw some further doubt on Lion as an authority that there is a general public interest exception to copyright equating with that applicable to confidence.
82. In considering the circumstances in which copyright may be overridden in the public interest, Aldous L.J. treats Lion as an action based on documents which in the circumstances reeked of turpitude, and as one where the plaintiffs were , in substance, seeking to found upon an immoral act. That, however, does seem to me to be too restrictive a view of Lion on any view. Lion was decided on the basis that it is not necessary to find any immoral act or "iniquity" on the part of a claimant in order to reach a conclusion that either breach of confidence or copyright is overridden. No distinction was drawn between the two in this connection, and Lord Denning MR's dictum in Fraser v. Evans [1969] 1 QB 349, 362 that ".... [iniquity] is merely an instance of just cause or excuse for breaking confidence." was applied to both: see per Stephenson L.J. at p.535C-E, 536C-D and F-G and 538A-E and per Griffiths L.J. at p550A-E. But that, as I have said, does not mean that the public interest in maintaining or overriding confidence and copyright is necessarily to be equated.
83. Whilst account must be taken of the different nature of the right involved in copyright, I prefer to state no more in this case than that the circumstances in which the public interest may override copyright are probably not capable of precise categorisation or definition. I would not at present advised agree with Aldous L.J's suggestion that "the circumstances must derive from work in question, not ownership of the copyright". No doubt this would normally be so. But the possibility of assignment does not appear to me to lead to a conclusion that it must always be so. Of course, if copyright has been assigned, e.g. to a purchaser having no notice of circumstances which might have affected its enforceability in the hands of the assignor, that would be a very relevant circumstance when considering whether the public interest overrode copyright. But, aside from situations of assignment, it seems to me possible to conceive of situations where a copyright document itself appeared entirely innocuous, but its publication -as a matter of fair dealing or, in circumstances outside the scope of s.30, in the public interest - was justified by its significance in the context of other facts. It might conceivably represent the relevant, though by itself apparently meaningless, piece needed to complete a whole jigsaw.
LORD JUSTICE STUART-SMITH:
84. I agree that the appeal should be allowed for the reasons given by Aldous LJ.
Order: Appeal allowed. Judgment given for claimant. Agreed minutes to be produced by Counsel. Defendants' application for permission to appeal to the House of Lords refused. Order does not form part of approved judgment.


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