Ashdown v Telegraph Group Ltd

Factual and Procedural Background

This appeal concerns whether the Human Rights Act 1998 has altered the protection of copyright owners under the Copyright, Designs and Patents Act 1988. The appellants ("Telegraph Group") argued that the courts must consider the right to freedom of expression under Article 10 of the European Convention on Human Rights when determining copyright infringement and remedies.

The underlying dispute arose from the publication by the Sunday Telegraph of a confidential minute of a meeting held at 10 Downing Street on 21 October 1997, recorded by the leader of the Liberal Democrats ("Plaintiff"). The minute was kept confidential and only two copies existed initially, one secured in a safe and the other shredded after limited circulation.

Approximately two years later, the Plaintiff planned to publish his diaries, including the minute. Before publication, the minute was shown confidentially to a few media representatives but was never sold. The Sunday Telegraph obtained the minute through unknown means and published significant verbatim extracts in November 1999 without payment.

The Plaintiff commenced proceedings against the Telegraph Group for breach of confidence and copyright infringement, seeking injunctions and damages. After a summary judgment application, the Vice-Chancellor held that the Telegraph Group infringed copyright, granted a final injunction, and allowed an appeal with a stay of the order pending the appeal.

Legal Issues Presented

1. Whether the Human Rights Act 1998 requires courts to consider the right to freedom of expression under Article 10 of the European Convention on Human Rights when determining copyright infringement and remedies.
2. Whether the defence of fair dealing under sections 30(1) and 30(2) of the Copyright Act applies to the publication.
3. Whether a public interest defence under section 171(3) of the Copyright Act can be raised to justify the publication.
4. The appropriate balance between copyright protection and freedom of expression, particularly regarding remedies such as injunctions and damages.

Arguments of the Parties

Appellant's Arguments (Telegraph Group)

• The Human Rights Act requires courts to give individual consideration to the impact of Article 10 on copyright claims.
• Section 3(1) of the Human Rights Act mandates interpreting the Copyright Act to preserve freedom of expression.
• The publication was fair dealing for the purpose of criticism, review, or reporting current events under sections 30(1) and 30(2) of the Copyright Act.
• The defence of public interest under section 171(3) should allow publication where freedom of expression outweighs copyright protection.
• The material published concerned matters of high public interest, justifying verbatim quotation to ensure authenticity.

Respondent's Arguments (Plaintiff)

• The Copyright Act already balances copyright and freedom of expression; no further exceptions are required to comply with Article 10.
• The articles did not criticise or review the minute itself, so section 30(1) does not apply.
• The events reported were not "current events" within the meaning of section 30(2) given the two-year delay.
• The public interest defence is narrowly construed and does not extend to freedom of expression alone.
• The extensive verbatim copying was unnecessary and commercially damaging, exceeding what was required to authenticate the report.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by acknowledging that the Human Rights Act 1998 engages Article 10 rights in copyright infringement claims but rejected the argument that each case must be individually scrutinised to assess necessity of restrictions on freedom of expression beyond the Copyright Act's provisions. The Court held that the Copyright Act already balances copyright protection and freedom of expression adequately, fulfilling the requirements of Article 10(2) for restrictions to be prescribed by law, protect others' rights, and be necessary in a democratic society.

Copyright was characterised as a negative property right protecting the form of expression but not the underlying information or ideas. The Court emphasised that freedom of expression primarily protects the right to express ideas in one's own words, not to appropriate another's exact wording, except in rare circumstances.

The Court examined statutory exceptions, including fair dealing under sections 30(1) (criticism or review) and 30(2) (reporting current events), rejecting the former as inapplicable because the articles criticised actions, not the minute itself. The Court found it arguable that the defence under section 30(2) might apply, interpreting "current events" broadly to include matters of continuing public interest, even if not recent in time.

Regarding the common law public interest defence under section 171(3), the Court reviewed authorities and concluded that the defence is narrowly constrained but acknowledged it can be raised in rare cases where freedom of expression outweighs copyright, especially post-Human Rights Act.

In balancing the fair dealing defence, the Court applied factors including commercial competition, prior publication, and the amount and importance of the work taken. It found that the Telegraph Group's extensive verbatim copying was commercially damaging and unnecessary to authenticate the report, thus failing the fair dealing test.

The Court recognised that in exceptional cases, freedom of expression might justify limited quotation or refusal of injunctive relief, but in this case, the scale and nature of copying went beyond what was justified. The Court did not consider it arguable that Article 10 required allowing the Telegraph Group to profit from the use of the Plaintiff’s copyright without compensation.

Holding and Implications

The Court DISMISSED the appeal, upholding the Vice-Chancellor’s judgment that the Telegraph Group infringed the Plaintiff’s copyright.

The direct effect is that the injunction and other relief granted below remain in place, and the Telegraph Group must pay most of the Respondent’s costs. The Court refused leave to appeal further.

No new precedent was established beyond affirming that the Human Rights Act does not expand defences to copyright infringement beyond those provided by the Copyright Act, though it requires courts to interpret the Act compatibly with freedom of expression rights. The decision confirms the narrow scope of public interest defences and the primacy of copyright protection over freedom of expression in most cases, except in rare circumstances where the latter may justify limited exceptions.