19 Mar JUDGE ORDERS FRONT PAGE STATEMENT IN DUCHESS OF SUSSEX CASE

The Judge in the case brought by the Duchess of Sussex, Meghan Markle, against The Mail on Sunday over its publication of a letter to her father has ordered the newspaper to publish a Statement on its front page referring to her victory in her copyright claim, following his decision to grant her summary judgment.

Although such orders have previously been made in Intellectual Property disputes, this is an unprecedented remedy in the context of a media law claim against a newspaper.

The Judge had previously found that the Duchess was entitled to summary judgment on liability for misuse of private information and on the issues of subsistence and infringement of copyright as a result of the publication of the letter, though some issues relating to copyright remain to be tried.

The claimant and the defendant newspaper group, Associated Newspapers Limited (“ANL”), disputed how the remaining issues in the action should be dealt with, and what remedies should be granted to the Duchess at this stage, resulting in a further hearing and decision by the Court.

The Duchess said that she was willing to accept only nominal damages for misuse of private information on the conditions that an order was made for an account of profits for copyright infringement, and that there should be no successful appeal against the Judge’s decision.
The Judge made procedural orders to progress the litigation, including to deal with the remaining issues as to copyright ownership and the profits to which the Duchess was entitled.

He granted a declaration to the effect that ANL had misused her private information and infringed her copyright in the Letter and a final injunction to restrain misuse of private information.

The Duchess relied on both an EU Directive and domestic court rules in support of her application for ANL to publish a statement concerning the result on its front page, and a more detailed Notice on the inside pages explaining the outcome of her copyright claim.

Recital 27 of the relevant Directive says that the policy objectives behind the court ordering dissemination of its decision are that, “…To act as a supplementary deterrent to future infringers and to contribute to the awareness of the public at large, it is useful to publicise decisions in intellectual property infringement cases.”

The Duchess argued that the order sought would (1) act as a deterrent to future infringers and (2) contribute to public awareness, and in particular awareness among readers of The Mail on Sunday and MailOnline (which had also published the Letter).

The Defendant argued that the remedy was “intended more as a species of punishment or retribution”, and that this inference could be drawn because of what it called the “invasive nature of the remedy itself and the lack of any proper justification put forward for the making of the Order”.

The Judge analysed the availability of remedies of this kind in media cases, where, he said “discursive remedies” of this kind had so far been unusual, although in defamation a court has jurisdiction to order publication of a summary of its judgment under s 12 of the Defamation Act 2013.

Since the Duchess limited the wording of the Statement to the outcome of the copyright claim, the Judge held that he had the power to make an order and that it was appropriate in the circumstances of the case to do so.

The precise format in which the Statement is to be published has not yet been decided by the Court, but it will appear on the front page of the Mail on Sunday, with the accompanying and more detailed Notice appearing on page 3.

Regulators already have powers to order the media to publish information about the outcome of complaints: Ofcom can make a direction to broadcast a correction or a statement of its findings and, as the Judge noted, the IPSO Code says that a publication “must report fairly and accurately the outcome of an action for defamation to which it has been a party”.

This order, however, is one which sees the Court intervene directly in the form and content of what an unsuccessful defendant should publish, and, as some commentators have already noted, an outcome of this kind will be a key goal for claimant lawyers in the future.