Ashdown v Telegraph: limitations of the 'fair dealing' defence

The case of Ashdown v Sunday Telegraph came before the Court of Appeal in August, on appeal from the decision of the Vice Chancellor (Press Gazette, Law Update, 6 April 2001).

The Telegraph had published several verbatim extracts from a confidential minute prepared by Lord Ashdown of a meeting between him and Tony Blair in October 1997, when they had discussed the possibility of co-operation between Labour and the Liberal Democrats.

The Telegraph’s defence – that reproduction was "fair dealing for the purposes of criticism or review" – failed, since the work itself was not the object of their criticism.

A defence of "fair dealing for the purpose of reporting current events" was arguable, the Court of Appeal held, saying that a liberal interpretation should be given to the provision, which was "intended to protect the role of the media in informing the public about matters of current concern to the public".

(By implication, therefore, matters could be historical, but of current concern and thus within the ambit of the defence.)

It is only the form of the literary work that is protected by copyright. So, there would have been nothing in the law of copyright to prevent the Telegraph publishing the information in the minute, without copying Lord Ashdown’s very words. The Telegraph argued that it had a right to reproduce his very words and the Court of Appeal held that, in some limited circumstances, the right to freedom of expression – a right now enshrined in the Human Rights Act – would only be fully effective if the exact words could be reproduced.

But that did not apply in this case, having regard especially to the quantity of the work taken. The court noted that the possibility of a public interest defence was already recognised under the Copyright Act.

Disagreeing with a previous Court of Appeal decision, it found that it was not necessary to find some iniquity to justify publication, although that would be a good argument for an overriding public interest. To define public interest as narrowly as that would not admit of a defence to breach of copyright based only on the right to freedom of expression. Instead, it held, the circumstances in which public interest may override copyright "are not capable of precise categorisation or definition".  The Telegraph could have made limited quotation of the actual words, to demonstrate that it had obtained the actual minute and was in a position to give an authentic account. But that was not what it had done.

Generally, if a newspaper makes unauthorised use of the work of another, it should have to pay compensation or account for the profits made unless it can bring its actions within one of the prescribed limitations or exceptions to the Copyright Act.

Brian Johnson is a solicitor in the media team at Farrer & Co

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