Friday Law Report: Court Must Look at Facts in Copyright Case Where Freedom of Expression Is Claimed ; 20 July 2001 Ashdown V Telegraph Group Ltd Court of Appeal (Lord Phillips, Master of the Rolls, Lord Justice Robert Walker and Lord Justice Keene) 18 July 2001

Article excerpt

RARE CIRCUMSTANCES could arise in which the right of freedom of expression guaranteed by article 10 of the European Convention on Human Rights would come into conflict with the protection afforded by the Copyright, Designs and Patents Act 1988. In those circumstances it would be necessary for the court to look closely at the facts of the individual case.

The Court of Appeal dismissed the appeal of the Telegraph Group Ltd against a decision that Lord Ashdown was entitled to summary judgment in his claim for infringement of copyright.

Since he became leader of the Liberal Democrats in 1988, the claimant had kept detailed diaries and other records of his life and political career. He treated them as confidential and kept them secure. After standing down from the leadership, he formed the idea of publishing his diaries.

In December 1999, the claimant commenced proceedings against the defendant, the proprietor of The Sunday Telegraph, claiming breach of confidence and infringement of copyright in respect of an article published in The Sunday Telegraph in November 1999 The article contained verbatim quotations from a confidential minute made by the claimant of a meeting he had attended on 21 October 1997 with the Prime Minister and others in connection with an intention to form a coalition Cabinet.

After a defence had been served, the claimant applied for summary judgment under Part 24 of the Civil Procedure Rules in respect of the copyright claim.

The defendant argued, inter alia, that in interpreting and applying sections 30 and 171(3) of the Copyright, Designs and Patents Act 1988 in a way which preserved the defendant's right of freedom of expression under art 10 of the European Convention on Human Rights, as it was required to do by section 3(1) of the Human Rights Act, the court had to take account of all the individual facts to see whether restriction of the defendant's freedom was necessary in a democratic society. …