Hyde Park Residence Ltd (Plaintiff) v David Yelland and Others
| Jurisdiction | England & Wales |
| Judge | Jacob J |
| Judgment Date | 16 March 1999 |
| Judgment citation (vLex) | [1999] EWHC J0316-8 |
| Docket Number | CH 1998 A No. 4853 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 March 1999 |
[1999] EWHC J0316-8
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Hon. Mr. Justice Jacob
CH 1998 A No. 4853
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
This is the official judgment of the court and I direct that no further note or transcript be made
DATED: 16th March 1999
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.
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 30 th 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.
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.
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.
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 8 th 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 called "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."
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.
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 2 nd 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.
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.
I have to decide the following matters:
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.
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".
If there is a defence of public interest whether that defence is made out or arguably made out on the facts.
Whether the plaintiffs are entitled to summary judgment, and
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.
Is There a Defence of Fair Dealing under s.30(2)?
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."
Mr Bloch suggested that this case was similar to that considered by Walton J in Associated Newspapers v News Group1. 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 a dealing as there has been by The Sun with The Daily Mail's copyrights for the purpose of reporting current events? Mr Gray...
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