Marina Palomba on The Sun's defence to breach of copyright. Marina Palomba is a partner at DJ Freeman.

The Court of Appeal, on 10 February, held that there is no statutory defence of public interest to a breach of copyright.

Hyde Park Residence, a company controlled by Mohamed Al Fayed, brought an action against The Sun newspaper and others for, among other things, breach of copyright in relation to photographs of Diana, Princess of Wales and Dodi Fayed visiting Villa Windsor on the evening of their tragic accident.

The photographs were stolen by Rueben Murrell, an ex-bodyguard of Al Fayed and his family, who then sold them to The Sun.

The Sun raised two defences: the defence of fair dealing, permitting criticism, review and news reporting of relevant events; and the defence of public interest.

In relation to fair dealing the Court of Appeal held that the photographs were not used by The Sun on 2 September 1998 for the purpose of reporting events of 30 and 31 August 1997, but rather that their clear purpose was an attempt to vilify Al Fayed.

Lord Justice Aldous said: "To describe what The Sun did as fair dealing is to give honour to dishonour."

Lord Justice Aldous also held that the court has, under its inherent jurisdiction, the right to refuse to enforce an action for infringement of copyright, just as it can refuse to enforce a contract or other cause of action which offends against the policy of law.

Lord Justice Aldous stated that in his view a court would be entitled to refuse to enforce copyright work if the work was:

immoral, scandalous or contrary to family life;

injurious to public life, public health and safety of the administration of justice;

incites or encourages others to act in a way referred to above.

There was no need in Lord Justice Aldous' view to publish the photographs when information could have been made available by

The Sun without infringing copyright.

While clearly there has been a move in recent case law towards a widening of the defence of public interest, this judgment has redressed the balance of when the press can legitimately comment on matters that they claim to be in the public interest which entitles them to override property rights.