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Cite as: [1999] EWHC Patents 247

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Hyde Park Residence Limited v. David Yelland, News Group Newspapers Limited, News International Limited, Reuben Murrell [1999] EWHC Patents 247 (16th March, 1999)

CH 1998 A No. 4853

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

 

Before: THE HON. MR. JUSTICE JACOB

B E T W E E N

 

Hyde Park Residence Limited

Plaintiff

- and -

(1) David Yelland

(2) News Group Newspapers Limited

(3) News International Limited

(4) Reuben Murrell

Defendants

Michael Bloch QC and Alistair Abott instructed by Messrs D J Freeman for the Plaintiff

Richard Spearman QC instructed by Farrer & Co for the Defendant

Hearing date: 2nd February 1999

 

JUDGMENT

"Unapproved Judgment: No permission is granted to copy or use in Court"

1. This is the official judgment of the court and I direct that no further note or transcript be made

THE HON MR JUSTICE JACOB

DATED: 16th March 1999

Jacob J

1. This is an application for summary judgment and for determination of a point of law pursuant to the provisions of Order 14 and Order 14A respectively. The plaintiffs are a company which provides, inter alia, close protection and security services to Mr Mohamed Al Fayed and his family. The first three defendants are the editor, publishers and printers of The Sun newspaper. The fourth defendant, Mr Murrell, is a former employee of the plaintiff's company.

2. Mr Al Fayed owns a house in Paris called the Villa Windsor. It is the former home of the Duke and Duchess of Windsor. In 1997 Mr Murrell was the chief security officer for the Villa Windsor. Part of the security arrangements consisted of a video security system fitted with eight cameras. Mr Murrell was told that the house would be visited on 30th August by the Princess of Wales and Mr Dodi Al Fayed. He says (and I must accept his account of events for the purposes of this application) that he set the cameras so that they could record the arrival and departure of the Princess and Dodi. He says he did it as part of his normal job because he was naturally concerned that if anything were to happen it was properly recorded. I am concerned with still pictures from the security cameras which show the arrival and departure.

3. At the time of the hearing there was a dispute of fact as to the way in which the video cameras worked - did they take still pictures every three seconds or did they take three second movie clips? A potential defence under s.30(2) of the Copyright Designs and Patents Act 1988 could only arise if the camera took clips, i.e. moving images. I suspected there was a misunderstanding: the plaintiffs' version of how the pictures had been made seemed technical nonsense. So I pressed the plaintiffs to check. They did so. As a result it is now common ground that the pictures with which this case is concerned are stills from films. They are thus each "photographs of the whole or a substantial part of any image forming part of the film" concerned - see s.17(4) of the Act. And, unless there is a defence available, the copying of such a picture without the authority of the copyright owner (accepted for present purposes to be the plaintiffs) is an infringement.

4. Mr Murrell says that shortly after the accident of the next day (in which the Princess and Dodi were killed) he made two pairs of stills from the video system. One pair showed the arrival, the other the departure. He says he did so pursuant to a request from a Mr Klein who worked for Mr Al Fayed, that he sent one of each to Mr Klein and kept the remaining copies in the files at the Villa Windsor. The pictures show, according to their timings, that the interval between arrival and departure was less than twenty eight minutes. Mr Murrell also says that he accompanied the Princess and Dodi on a short tour of the house and that there was no discussion of the couple having any plans to come and live in the house. He also says there was no Italian designer who ever visited the house with either of the couple for that purpose.

5. The publicity surrounding the accident has been enormous and unceasing. At various times Mr Al Fayed has made comments about the intentions of his son and the Princess as regards marriage. The defendants say that Mr Al Fayed has told a number of falsehoods in a book entitled "Death of a Princess" published in 1998, in the 8th February 1998 edition of The Sunday Times, in the 12th February 1998 and 31st August 1998 editions of The Mirror Newspaper and in a television programme entitled "Secrets of the Crash" broadcast in July 1998. The defendants summarise what they say are these falsehoods in their skeleton argument:

"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 26th and 27th 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 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."

6. The defendants suggest that these were deliberate falsehoods, concocted for the purpose of divorcing Mr Al Fayed in the public eye from any responsibility for the deaths of Diana and Dodi (it was one of his employees at the Paris Ritz who was the driver and is said to have been drunk), and possibly also to give credence to the view that but for the crash, Mr Al Fayed would have become the step-grandfather to a future King.

7. The defendants further say that Mr Al Fayed arranged for employees of his at the Villa Windsor falsely to corroborate the story of the visit (and of an alleged earlier visit). Mr Murrell says that he was asked so to do, that he refused to lie, and that is why he resigned. He says he was entitled so to do and that all question of trust and confidence between him and his former employers was thereby destroyed. He says he was entitled, shortly before his departure, to remove the stills showing the exact timings of the arrival and departure and take them to The Sun. The Sun, after getting Mr Murrell to verify the authenticity of the photographs and of his own position as chief security officer at the Villa Windsor by taking further photographs inside the premises, published copies of the stills on 2nd September 1998. An article by Mr Al Fayed in The Daily Mirror had occurred only two days before. In it, Mr Al Fayed repeated his allegation, amongst others, that the period of the visit was two hours. The Sun and Mr Murrell say that The Sun was entitled to publish these pictures because any copyright that may exist in them is unenforceable by virtue of s.30(2) of the Act, alternatively in the general public interest. No point arises on the originals of the stills: they have been returned pursuant to a consent order.

8. The plaintiffs seek summary judgment for infringement of copyright by the publication of the pictures from the video system. Although other pictures are mentioned in the application, the heart of the case relates to these so called "driveway" pictures. Mr Bloch QC, for the plaintiffs, sensibly accepted that I could consider the case on the basis of these pictures alone.

2. I have to decide the following matters:

1. Whether a defence of fair dealing for the purpose of reporting current events under s.30(2) of the Act is or may be made out.

2. Whether there is any public interest defence to infringement of copyright other than those specified in the Act itself. The parties have formulated the question thus:

"Whether under English law there exists a defence to copyright infringement beyond those statutory defences provided by Chapter 3 of Part 1 of the Copyright, Designs and Patents Act 1988 whereby copyright may lawfully be reproduced in the public interest, or whether considerations of public interest are merely factors relevant to the grant of equitable and/or injunctive relief".

3. If there is a defence of public interest whether that defence is made out or arguably made out on the facts.

4. Whether the plaintiffs are entitled to summary judgment, and

5. If they are entitled to summary judgment, whether there should be an award of additional damages pursuant to s.97(2) of the Copyright, Designs and Patents Act.

1. Is There a Defence of Fair Dealing under s.30(2)?

9. I am of the opinion that the publication falls within s.30(2). It reads:

"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 a 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."

10. Mr Bloch suggested that this case was similar to that considered by Walton J in Associated Newspapers v News Group [1986] RPC 515. In that case, shortly after the death of the Duchess of Windsor, The Daily Mail had acquired (for a limited period) the copyright in letters passing between the late Duke and Duchess. It was publishing these letters. The Sun acquired copies and was publishing them too, thus seeking to divert readers to itself who might otherwise have gone to The Daily Mail and spoiling The Daily Mail's exclusivity. Walton J had no difficulty in deciding that what The Sun was doing was not "fair dealing". But what Mr Bloch relied upon is what Walton J said in relation to "reporting current events" in the provision of the 1956 Copyright Act which corresponds to the present s.30(2):

"What here are the current events? Is such dealing as there has been by The Sun with The Daily Mail's copyrights for the purpose of reporting current events? Mr Gray for The Sun submitted to me that the current events are the death of the Duchess, her motives and intentions in seeking publication of her letters, and the fact that the undisclosed letters themselves have been published casting, as he says, light on matters of historical interest. The death of the Duchess is a current event. Whether her motives and intention in wanting publication is a current event seems to be dubious, but one will let that pass. It does not seem to me that the actual publication of the letters is the sort of current event of which subsection (3) is speaking. It seems to me that there may well have been cases where the publication of historical material, material that is strictly historical, may nevertheless be of urgent necessity in reporting current events. One has only to think, for example, of correspondence dealing with nuclear reactors which have just blown up or have had a core melt-down: that might date from a very considerable period previous to the event happening, but would be of a topical nature in order to enable a report on what had actually happened to be properly prepared.

It seems to me that although of course there is no requirement, as Mr Jacob for the plaintiffs has freely admitted, of necessity in subsection (3), that at any rate is a good start. If one asks the question: is it reasonably necessary to refer to these matters in order to deal with current events? It seems to me that the answer is no. The death of the Duchess does not require the publication of the contents of the letters. Her motive and intention in wanting publication, still less so. The mere fact that undisclosed letters have now been published do not require that one should go further and go into those matters by breaching the plaintiffs' copyright."

11. Mr Bloch said the position was the same here: at the time of publication of the stills in The Sun the visit to the Villa Windsor was over a year old: it was no longer "current". That to my mind takes far too narrow a view of the meaning of "current events". Walton J himself in his example of old material relating to newly blown-up nuclear reactors contemplated just the sort of position that happened here. Only two days before the publication in The Sun of the stills, Mr Al Fayed had again put into the public domain the proposition that there had been a full two hour visit to the Villa Windsor. 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".

12. I am reinforced in my view by what was said by Walker LJ in Sieben Media v Carlton C.A. Unreported 17th December 1998. In a judgment with which the other members of the court agreed, he said:

" 'Criticism of review' and 'reporting current events' are expressions of wide and indefinite scope. Any attempt to plot their precise boundaries is doomed to failure. They are expressions which should be construed liberally."

3. Accordingly I think that the use made of the stills by The Sun was within the phrase "reporting current events", giving those words wide scope.

13. That does not end the point because there is still the question of whether or not the publication of the photographs was "fair dealing". This case is not like one of those cases where the defendant is seeking to compete with the plaintiff (as in Walton J's case) and no attempt was made to suggest unfairness of that sort. What was said was that there was no need for The Sun to use this copyright work at all - a test of necessity. I do not think that is the right approach. One simply asks "is what the defendant did with this work 'fair'?" It may well be that in some cases what a defendant publishes is completely unnecessary so far as any reporting of public events is concerned. That may take the use outside the scope of "fair dealing". But it by no means follows that a use can only amount to "fair dealing" where it is necessary.

14. 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.

15. Further, Mr Al Fayed had clearly put into 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 to 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 sinister 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 such as 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.

16. Mr Bloch also said that I should view the matter differently because Mr Murrell was paid for the pictures and The Sun expected to make money out of printing the pictures. I suppose both are true. Mr Bloch pointed to what Lord Denning LR said in Initial Services v Putterill [1968] 1 QB 396 (when considering whether an alleged breach of confidence was justified in the public interest):

"I do not think that an employer can say to a servant: "I know we are issuing misleading circulars but you are to keep quiet about it, and if you disclose it, I shall sue you for damages". The servant may well be justified in replying: "I cannot stand such conduct. I will leave and let the public know about it, so as to protect them." I say nothing as to what the position would be if he disclosed it out of malice or spite or sold it to a newspaper for money or for reward. That indeed would be a different matter. It is a great evil when people purvey scandalous information for reward."

4. The reality is that the Press often have to pay for information of public importance. And when they publish they will always expect to make money. They are not philanthropists. I do not think that the fact that Mr Murrell was paid and that The Sun expected to make money derogates in any way from the "fair dealing" (or any public interest) justification. Besides, Lord Denning's comment seems to be confined to "scandalous information".

2 Is There a Defence of Public Interest in Principle?

17. This is an important question. Both sides invited me to decide this point of law pursuant to the provisions of Order 14A. Having formed a clear view that there is a defence under s.30(2) it is not strictly necessary for me to do so. Moreover, the question as posed is somewhat abstract in nature. For instance it does not seek to identify the circumstances in which, if there is a defence, it may in fact be applicable. Accordingly I was sorely tempted not to answer the question. However, the matter was very fully argued and since it is quite possible that this case may be taken further and there is perhaps a prospect of the Court of Appeal taking a narrower view of s.30(2) than me, I have decided to accede to the parties' mutual wish.

18. Mr Bloch says there is no such defence. He says that although a number of judges have indicated otherwise, there has in fact been no case where at final judgment any court has ever held that there is a defence of public interest to copyright infringement. He says that the various opinions to the contrary expressed by various judges are in fact wrong. All there is, at most, is a public interest defence to the grant of an interlocutory injunction and perhaps he would concede a final injunction, both of these being discretionary remedies.

19. I begin by referring to the Act. By s.1(1) copyright is defined as a "property right." It is, of course, intangible. When analysed it is a right to prevent any of the various kinds of act specified as infringements. Copying and publishing are typical examples. The Act contains (in about 40 sections forming Part III) a detailed series of exceptions to the infringement provisions. s.30(2) is an example. In addition, however, the Act provides by s.171(3) that nothing in Part I:

"affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise".

5. No such provision existed under the previous Copyright Act, the 1956 Act.

20. The argument for the plaintiff is simple: the Act has created a property right, it has specified what amounts to infringement and it has produced a detailed list of exceptions. It is no business of the courts to invent any further exception. This is all the more so when one recognises that some of the exceptions are related to public interest (e.g. s.30(2)). For the courts to go outside those and enforce some undefined public interest limitation would amount to judicial legislation. Moreover, such judicial legislation would involve the courts in controversial questions of public policy; individual judges would be very likely to have different views from other individual judges; and the law would generally be brought into disrepute.

21. The plaintiffs reinforced their argument by reference to the work of learned authors, Laddie, Prescott and Vitoria 2nd Edn., 1995, paras 2.150-2.153. The learned authors hold that there is no general public interest defence to copyright infringement. They also say that in those cases where judges have suggested that there is such a defence, the judges concerned were wrong. Moreover they say, insofar as those judges justified their opinion by reference to earlier cases, those earlier cases do not support them. To some extent, though the point was not at all in issue, Laddie J in Pro Sieben indicated the same view.

22. As regards s.171(3) they say that this amounts to no more than a recognition that decisions whether to grant equitable or interlocutory relief may take into account public interest. And in any event s.171(3) does not actually provide a defence. It merely hedges its bets by saying if there is a defence, it is preserved.

23. The defendants rely upon a substantial number of judicial opinions to the effect that there is a public interest defence. Whether or not those opinions were wholly justified at the time it is now too late for the courts to go back on them. Moreover, they say that by the time of the 1988 Act those opinions were notorious. That indeed explains s.171(3) which had no predecessor in the previous Act. Parliament was concerned to preserve what the judges had created.

24. With that summary of the arguments I turn to examine the cases I begin with that class of case where the courts have denied copyright altogether. No-one disputes that such cases exist, and indeed are of some antiquity. Copyright has been denied on the grounds that the work was grossly immoral, Glyn v Weston Feature Film [1916] 1 Ch. 261 or that it is fraudulent, Slingsby v Bradford Patent Truck. [1906] WN 51, CA Lord Jauncey put the position thus in Spycatcher - AG v Guardian Newspaper: [1991] AC 109

"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] W.N. 122; [1906] W.N. 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 product. 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."

6. 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. That being so anyone can copy Spycatcher in whole or in part without fear of effective restraint by Peter Wright or those claiming to derive title from him. It follows that the future ability of "The Sunday Times" to serialise in whole or in part without fear of effective restraint by Peter Wright or those claiming to derive title from him. It follows that the future ability of "The Sunday Times" to serialise Spycatcher does not derive solely from their licence. They are free to publish without reference thereto and are thus for practical purposes in no better position than any other newspaper."

7. Such cases are rare, of course. And there can certainly be dispute if the courts go too far in appointing themselves as moralists (a criticism often levelled at Glyn). But that does not matter for present purposes. The point is that in principle public policy can prevent copyright enforcement completely. Some might say it is a remarkable thing for the courts to take away that which has been given by Parliament.. Yet that is what the courts have done in extreme circumstances. No-one suggests that they were wrong to do so or that one could go back on that now. It is far too late.

25. I now turn to cases where the courts have recognised a less draconion restriction on copyright enforcement, those where the court has merely recognised a defence of public interest in particular circumstances. The first of these is Beloff v Pressdram [1973] RPC 765 at page 783. Private Eye had published a memorandum written by the plaintiff who was an Observer journalist. She sued for copyright infringement. She lost because she did not own the copyright. Ungoed-Thomas J went on to consider the position if it had been otherwise. He clearly formed the view, which was merely obiter dictum, that there is a defence of public interest. He said p.783:

"Fair dealing is a statutory defence limited to infringement of copyright only. But public interest is a defence outside and independent of statutes, is not limited to copyright cases and is based upon a general principle of common law."

8. Later he indicated that public interest was of limited scope, saying:

"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 misdeed or 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, recognisable as such."

9. Ungoed-Thomas J based his observations primarily on two cases, Initial Services v Putterill [1968] 1 QB 396 and Hubbard v Vosper [1972] 2 QB 369. It is fair to say that neither case really supports those observations.. So far as copyright is concerned, the claim in Initial was not actually framed in copyright at all, though on the facts it seems it could have been so framed. The claim was only for breach of confidence and the case was decided on the basis that the courts will not grant an injunction to restrain a breach of confidence where the alleged breach will result in disclosure of an iniquity (in the case concerned, that the plaintiffs were acting in breach of the Restrictive Trade Practices Act, i.e. were acting against the common weal as specifically set out in a statute). The other case, Hubbard, was framed primarily in confidence though copyright was also asserted. So far as the claim was based in copyright the argument was merely whether or not a statutory defence (fair dealing for the purposes of criticism or review) might apply. There was no discussion or recognition of any wider defence of public interest. On the facts the court simply held that at the interlocutory stage the defence might apply and the balance of convenience was against the grant of an interim injunction.

26. Lion Laboratories v Evans [1985] QB 526 took the defence of public interest much further. The members of the Court of Appeal clearly were of the view that there was such a defence to a copyright claim. They were concerned with a defence to a claim for an interim injunction. But there is nothing in any of the judgments which indicates that the court was confining what was said to any special consideration arising from that fact. What was said could have applied equally at a full trial. And it is clear that the court was not concerned with any point relating to the discretionary nature of an injunction - it was concerned with a complete defence. The defendants had published a document which indicated that there were faults with the plaintiffs' intoximeter which was then in general use. The claim was in breach of confidence and copyright. Stevenson LJ, with whom O'Connor LJ agreed, said that it was right not to draw any distinction between the law of confidence and copyright and that the public interest may afford a "just cause or excuse" for breaking confidence or infringing copyright. Griffiths LJ was even more explicit:

"I am quite satisfied that the defence of public interest is now well established in actions for breach of confidence and, although there is less authority on the point, that it also extends to breach of copyright: see by way of example Fraser v Evans [1969] 1 QB 349, Hubbard v Vosper [1972] 2 QB 84, Woodward v Hutchins [1977] 1 WLR 760 and British Steel Corporation v Granada Television Ltd [1981] AC 1096."

10. All three members of the court were agreed that the defence was not limited to cases of wrongdoing on the part of the plaintiff but that disclosure of iniquity was merely an instance of a just cause or excuse. The test was whether there was a legitimate ground for supposing that it was in the public interest for disclosure to be made.

27. Mr Bloch faced up to the fact that Ungoed-Thomas J and Griffiths LJ and to a lesser extent, Stevenson LJ, had formed the view that there was a defence of public interest to a copyright infringement claim. He suggested Lion could be explained on the basis that it was concerned only with the grant or refusal of an interim injunction and accepted that the public interest might be a defence to such a grant. But, as I have said, that is not what any of the Lords Justices in that case themselves said. As to Beloff Mr Bloch said that Ungoed-Thomas J was both obiter and wrong. In both cases he contended that the judges has simply misread the earlier judgments.

28. I have already indicated that I think Mr Bloch was right about the authorities relied upon by Ungoed-Thomas J in Beloff. They do not explicitly support Ungoed-Thomas J's obiter conclusion. Griffiths LJ, who was most explicit on the point in Lion, relied in addition to Fraser, upon Hubbard, Woodward, and British Steel. Mr Bloch demonstrated that two of these cases, Woodward and British Steel were simply not copyright cases at all. And Hubbard turned solely upon a statutory defence - "fair dealing for the purposes of criticism or review." All the Court of Appeal said is that the defence arguably applied and so no interim injunction should be granted. The upshot of Mr Bloch's analysis, which I think is correct, is that in neither in Beloff nor Lion was there any substantial basis in precedent for the judges' conclusions that a defence of public interest existed.

29. However that is not an end of the matter. Lion was referred to with apparent approval in Spycatcher, by Lord Griffiths p.269 and Lord Goff. p.268 It is true that the approval (which in the case of Lord Goff extended to Beloff) was only in the context of confidential information, but it would hardly make sense for it to be so limited: that would mean the law pointing in two opposite directions at the same time This appears all the more so given that both members of the House were alive to the potential impact of copyright law. Thus Lord Griffiths said p.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 other third party chose to publish Spycatcher and keep such profits as they may 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."

11. And Lord Goff specifically said:

"It must not however be forgotten that cases of breach of confidence may well involve questions of property (in particular, copyright) as well as questions of personal liability."

12. Nor was it only these two members of the House who were alive to copyright. I have already referred to what Lord Jauncey said in the context of a copyright regarded as wholly unenforceable on grounds of public policy.

30. It seems to me that judicial authority in England and Wales over the years up to the 1988 Act had, albeit with little basis, been tending towards the recognition of this defence. Whether or not what was said before the 1988 Act (which had no equivalent to s.173(2)) was right, I think the better view is that that provision was intended to recognise a defence of public interest - either by way of refusing to recognise copyright altogether ("preventing enforcement") or by way of a defence in the particular circumstances of the case ("restricting enforcement"). The Act is not merely saying "if there is a defence, it is preserved" - what I earlier called hedging its bets. Nor do I read "restricting enforcement" as limited to witholding an equitable remedy. That is not what it says. In reaching my conclusion I bear in mind that the judicial expressions of opinion in Beloff and, particularly Lion were well known when the 1988 Act was passed. The Act was recognising what had been said by the judges in those cases. I would add this. Once it is conceded, as it must be, that the courts in certain limited classes of case can refuse to recognise copyright altogether, the concession amounts to saying that none of the acts which Parliament has said are infringements are such. If the courts can do that then surely they can do the lesser thing of refusing to recognise a particular act as infringement when that act is in the public interest.

31. Mr Bloch suggested that the "public interest" exception in relation to breach of confidence was because confidential information is not "property" whereas copyright is. I reject that submission. The question does not turn on a question of classification. It is true that questions as to whether a particular right is or is not "property," are sometimes unavoidable, for example where a statute refers to "property." Indeed whether or not confidential information or know-how is or is not "property" in some particular context or for some particular purpose, is one of the law's perennial questions. But that sort of point is irrelevant here, where one is concerned with rights to stop others from doing certain kinds of act. The holder of confidential information is normally entitled to stop other people from doing certain acts in relation to it, for instance publishing it. So also with copyright. Copyright and confidential information are sometimes inextricably mixed up: classification of one as "property" and the other as something less merely confuses things with words. There are, of course, copyright works, music, beautiful paintings, poetry and so on, which are not concerned with the conveying of factual information. Other copyright works are essentially only about factual information. That is true of these photographs here. No-one is interested in them for their intrinsic beauty or artistic content.

32. It is constructive to consider the view of English law taken in Australia and Canada. Thus Mason J in the High Court of Australia in The Commonwealth of Australia v John Fairfax (1980) 147 CLR 39 said:

"It has been accepted that the so called common law defence of public interest applies to disclosure of confidential information. Although copyright is regulated by statute, public interest may also be a defence to infringement of copyright".

13. In so saying Mason J referred to Fraser, Beloff and Hubbard. In Collier Constructions v Foskett (1990) 97 ALR 460; 19 IPR 44 Gummow J concluded that there was no such defence in Australia. He encapsulated the argument against the existence of a public interest defence in the following language:

"It would be an odd result if this complex of provisions [i.e. those specific defences under the Act], reflecting an accommodation by the legislature of a range of competing interests, were overlaid with some defence springing from the general law and defined with none of the precision apparent in the legislation."

14. Gummow J fully subscribed to the criticisms of Beloff and Lion in Laddie, Prescott and Vitoria which also form the heart of Mr Bloch's argument. However Gummow J went on to say with characteristic acerbity:

"It may fairly be observed of the evolution of authority in England that it has not involved any consideration of fundamental principle. Nevertheless, the British legislature now appears to have acted upon the faith of these cases in sub-s. 171(3) of the Copyright, Designs and Patents Act 1988 (U.K.). This provides that nothing in the relevant Part of the statute "affects any rule of law preventing or restricting the enforcement of copyright, on the grounds of public interest or otherwise". This provision may be compared with sub-s. 9(3) of the Australian legislation which provides that the Copyright Act "does not affect the operation of the law relating to breaches of trust or confidence". It has been said of the recent change in the English legislation that the precise limits of the defence still await definitive demarcation, "a task which Parliament clearly prefers to leave to the courts: Gerald Dworkin and Taylor, "Blackstone's Guide to the Copyright, Designs and Patents Act 1988", p. 82."

15. Although that case went on appeal "the public interest defence" was not considered further. I think Gummow J's analysis is exactly right: the pre-1988 Act authorities had inadequate foundation, but Parliament has now decided to allow the courts to apply a defence of public interest.

33. In one other Australian case, Acohs v R. A. Bashford Consulting 9th May 1997 , Merkel J also formed the view that the English cases had established a public interest defence and that Parliament had chosen to recognise this. He said:

"In the United Kingdom, where public disclosure of certain copyright material has been regarded as being "in the public interest", the courts have regarded themselves as entitled to refuse to enforce the statutory rights of the copyright owner notwithstanding that no public defence was provided under the United Kingdom legislation: see Beloff and Lion. The defence is now recognised by statute in the United Kingdom in s.171(3) of the Copyright, Designs and Patents Act 1988".

34. In Canada the Federal Court of Appeal, relying inter alia on Hubbard and Beloff, also took the view that the English cases established the existence of a defence of public interest. Mahoney JA, with whom Heald JA and Ryan JA agreed, said:

"I have no doubt that a defence of public interest as enunciated in the English cases is available in proper circumstances against an assertion of Crown copyright".

16. Turning to academic authors, I have already indicated that Laddie, Prescott and Vitoria support Mr Bloch. On the other hand Professor Dworkin and Mr Taylor take the opposite view as pointed out by Gummow J. So also does Professor Cornish. He said: Intellectual Property 3rd Edn., 1996.

"Many cases to do with newsworthy information are founded in copyright as well as confidence. In England, the tendency has been to treat public interest as having the same impact in respect of either cause of action. But, as we shall see, in copyright there are other relevant defences provided by statute."

And:

"In contradistinction to the statutory defined defences just mentioned, the judges have kept the power to refuse protection to a copyright owner on public policy grounds, and these we may divide into two kinds."

17. Professor Cornish's two kinds of public policy grounds are those involving "the policy against legal protection", e.g. because it is obscene or deceptive, and the "policy favouring dissemination" such as was recognised as potentially existing in Beloff.

35. Furthermore the current edition 14th edn., 1999 of Copinger also accepts that the defence exists. The authors say:

"The concept of a defence of "public interest" in publication appears to be the same for both copyright and confidence. The Courts in England will not enforce any claim to copyright by publishers of a work containing government secrets, the disclosure of which is contrary to the public interest and in breach of confidence. Grossly immoral information will not be protected by the law of confidence or copyright."

36. I must deal a little more with Mr Bloch's submission that cases where the courts have refused injunctions it has been on the basis that injunctions are equitable remedies only. As I have said none of the authorities I have mentioned so far have been founded on this principle, although it is true that Sir Nicolas Browne-Wilkinson VC in Stephens v Avery [1988] FSR 510 accepted the principle that a court of equity will not enforce copyright. Mr Bloch submitted that even if all equitable relief was refused on the basis of public interest, his client was entitled to at least nominal damages. I reject that. It seems to me that the whole question of nominal damages is at the end of this century far too legalistic. A plaintiff who recovers only nominal damages has in reality lost and in reality the defendant has established a complete defence. So in my opinion if equity prevents relief on the grounds of public interest, it in substance provides a complete defence to the entire claim. Certainly that is how Lord Jauncey appears to have seen the position in Spycatcher in the passage I have quoted. He regarded equity as intervening completely.

37. 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 works. 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 obtain from a security video a picture of a bank robber. Do they really have to get the permission of the 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.

38. Finally I must also deal with the suggestion that a public interest defence would involve judges in matters of public controversy and make the law uncertain. I do not agree. Given that no-one quarrels with the Lion defence of "just cause or excuse" so far as breach of confidence is concerned, I do not see why the position is any different or worse in respect of copyright. Recognition of a public interest defence to breach of copyright has not had the effect suggested thus far. Besides it may well be that balancing the "freedom of expression" conferred by Art.10 of the ECHR and the "right to respect for private life" conferred by Art.8 will involve the judges in just the same or a similar sort of exercise as is involved in judging whether there is a public interest defence. I say no more about the ECHR in the context of this case, because neither side argued its case by reference to it.

39. Accordingly, in my opinion, there is a public interest defence available in principle. That is not to say it is of wide scope, even though it cannot be more precisely defined than "just cause or excuse". It is unlikely that the defence will succeed unless the court can be reasonably certain that no right-thinking member of society would quarrel with the result. It is difficult to imagine the defence arising except in the context of the communication of what is essentially information - information clothed in copyright. Before it can arise it must be shown that there is a genuine public interest in that information being disclosed. For that purpose it will be vital to bear in mind the difference between public interest and the interest of the public. And in many cases wholesale mass disclosure, for instance to the newspapers will not be justified. The disclosure may only be proportionate to the public interest. In many cases it would suffice to disclose the information and a copy document to the relevant authorities. For instance here if the French investigating Judge was concerned to know the facts about the visit to the Villa Windsor the day before the accident, it would have been justified to disclose the photographs to him. And if the matter had only involved the investigating Judge it would not have been justified to disclose it more widely.

3. Was Disclosure in The Sun justified on the facts?

40. Mr Bloch said that, even if there is a public interest defence, disclosure in The Sun newspaper was not justified. And all the more so because Mr Murrell was apparently paid a sum of money, the amount of which is not as yet known. (I should incidentally say that Mr Bloch sought a specific order for disclosure of the sum paid which I refused although doubtless the sum will emerge in the ordinary course of discovery and be subject to the usual discovery rules). However what I have said in relation to "fair dealing" applies equally to the defence of public interest. Publication was justified.

4 & 5 Are the plaintiffs entitled to summary judgment and if so, additional damages?

41. From what I have said the plaintiffs are not entitled to summary judgment. Indeed I think the case is so clear that it is the defendants who are entitled to judgment. Further, even if I were wholly wrong about s.30(2) and public interest I would not regard this as a case for additional damages. Far from it. s.97(2) provides:

"The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to-

(a) the flagrancy of the infringement, and

(b) any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require."

18. Mr Bloch suggested that The Sun knew it was infringing copyright and so acted flagrantly, and that it did so intending to get and getting a benefit. So the case came within the provision. But this overlooks the fact that additional damages are discretionary ("may .. award"). Even if there is no complete public interest or statutory defence, Mr Bloch himself concedes that public interest is a defence to a discretionary remedy. I would have held that additional damages be not awarded on the ground of public interest.

42. I will hear counsel as to the appropriate form of order.


© 1999 Crown Copyright


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