The Duchess of Sussex’s Front-Page Statement on Hold Pending Appeal

28 April 2021

Author: Olivia O'Kane
Practice Area: Media and Entertainment

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Following the Duchess of Sussex's successful copyright infringement and privacy claim against Associated Newspapers, a summary judgment was handed down on 11 February 2021. This judgment granted the Duchess of Sussex an order compelling the Mail on Sunday to publish a synopsis of her legal victory on its front page (the Publication Order).

The High Court has now considered the form of this Publication Order in a recent judgment by Lord Justice Warby. Interestingly, the defendant also applied for permission to appeal the decision and requested a stay of the Publication Order pending this further appeal. The judge, refusing permission to appeal, granted a “stay” of the order requiring publication of the statements “only until the matter has been decided by the Court of Appeal”.

Decision

The Publication Order

The claimant wanted the wording of the public domain proviso included in the final injunction to say "provided that nothing in this Order shall prevent the publication, disclosure or communication of report of the judgment given on the Summary Judgment Application or any fair and accurate commentary on that judgment". However, the defendant argued, successfully, that this raised the possibility that the defendant would be threatened with an action for contempt if the claimant believed its reporting was unfair, or if it contained a minor inaccuracy.

The judge agreed with the defendant that the concepts of fairness and accuracy were well understood in civil proceedings and the risk of reporting being unfair or inaccurate should not carry with it the possibility of contempt proceedings, and the words "fair and accurate" should therefore be omitted. Further, it would be wrong to limit the scope of the carve-out for commentary to comment which is "fair and accurate".

The font size and placement of a front-page statement in the Mail on Sunday which would direct readers to a notice inside the paper that summarised the judgment on copyright infringement was then considered. The statement produced by the claimant was much longer than the original front-page trailer relating to the story complained of, but the claimant requested that it be carried using the same position and size of font as that trailer. If that were done, the statement would take up a much larger area of the front page than the trailer. For that reason, the judge accepted that the defendant's example, which ran the statement along the bottom of the front page as a sub-banner in a smaller font, was sufficiently prominent and eye-catching to serve the purposes of the Publication Order.

The defendant also requested that the notice to be on the homepage of the MailOnline website for 24 hours and on the news page for the rest of the week, arguing that 24 hours was longer than any other article ever spent on the homepage and that the news page was a very prominent place for it to appear. The judge accepted this as a reasonable way of complying with the one-week period of publication.

It was decided that the defendant should be allowed 14 days, to give it the option to publish the account in print two Sundays later. This limited degree of freedom would not materially prejudice the claimant as this was not "red-hot news, of a perishable kind".

Appeal of Publication Order

The defendant then relied on three grounds to argue that they should be granted permission to appeal the above Publication Order:

  • The third ground (dealt with first) was that the judge was wrong to grant at this stage because there were still outstanding issues on the copyright claim. This ground had no real prospect of success, as the judge had found that the defendant had no real prospect of defending the copyright claim, which the claimant was bound to win. There were some aspects of the relief sought that could not be granted, because of the remaining issues in that claim, and this was why the judge had withheld a final injunction. However, that did not mean that the court should withhold relief that reflected its final determination of the merits and did not depend on the resolution of any outstanding issues. All the remedies that the judge had ordered would be set aside if the summary judgment on the infringement claim were to be successfully appealed, but that was a different matter;
  • The first ground was that the judge should have recognised that publicity orders were not the norm and should only be granted where it met the specific objectives in recital 27 of the IP Enforcement Directive (2004/48/EC). This ground had no real prospect of success either. It seemed to arise from a misreading of the consequentials judgment, where the judge had said that such orders were "common practice". This was not the same as saying that they were "the norm". The judge also dismissed an argument that he had failed to recognise the ways in which the Directive limited the purposes for which such an order could be made, pointing out that he had examined the legitimate purposes identified in the Directive; and
  • The second ground was that the judge had failed to recognise that the order sought did not serve either of the two objectives in recital 27 to the Directive. This ground held no merit, as this was a matter for the judge to decide, as he had done, and there was no allegation that he had taken account of irrelevant factors or failed to take anything relevant into account.

Stay of the Publication Order pending the defendant's further appeal

Finally, the defendant applied for a stay of the Publication Order. It was contested that any right to appeal would be worthless once the defendant had complied with the Publication Order and that, therefore, the Publication Order should not be implemented until such appeal is considered.

The claimant opposed the application on the basis that:

  1. The publication would simply state the facts of what had happened in court previously;
  2. That if the judgment was successfully appealed, it would be open to the defendant to publicise that success; and
  3. That the order would be deprived of much of its utility if publication were deferred for months, if not longer. Therefore, it would be of far less benefit to the claimant if it were deferred until the outcome of any appeal.

The judge noted that publishers were required under the Editors' Code to publish the facts of any libel judgment against them, and there was no qualification of that requirement to cater for pending appeals. Furthermore, the defendant was a publisher and would find it easy to publicise any successful appeal. It was not as though the Publication Order related to any sort of apology or correction.

The defendant's argument was that it should not be required to publish such a statement at all, either in principle or as a matter of proportionality and discretion. They were entitled to ask the Court of Appeal to look at their argument and decide whether they justified permission to appeal; to refuse a stay would negate that entitlement, so the judge decided to grant a stay until this question could be decided by the Court of Appeal.

Conclusion

This case highlights the balance to be struck between the defendant’s freedom to decide what it publishes and providing relief to the claimant. Publication Order statements must only be of similar prominence to the original article but must highlight the decision clearly. The judge will always strive to be pragmatic and fair in these cases.

Notably, any future decision by the Court of Appeal in this case will be a significant milestone in the Duchess of Sussex’s privacy claim and it is, therefore, awaited with anticipation by lawyers and journalists alike.

*This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.

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