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23 October 2013
The decision against the Evening Standard's spoof, "Alan Clark's Diary" is not a blow to humour and free speech, says Clark's solicitor, Sinead Martin. Sinead Martin is a solicitor at Denton Hall.
In an important case for all authors and publishers, author and diarist Alan Clark MP, obtained an injunction against Associated Newspapers, the publishers of the Evening Standard preventing further publication of their "secret" diaries in a form which constituted passing off and false attribution of authorship.
Mr Justice Lightman also awarded costs in Clark's favour and there is to be an inquiry into the damage he suffered as a result of their publication.
This case was not about freedom of speech or about curbing the power of the press. The Evening Standard itself invoked these issues, and even after the trial, the diary author Peter Bradshaw, said that the result was "a terrible day for parody... a victory for the humourless".
Such arguments however completely disregard the crucial fact that no objection was ever made nor could it have been made by Clark to the publication of the articles themselves.
The fact that the verdict allows the paper to continue with "Not Alan Clark's diary" shows it is not the humour or parody which is gagged, but the banner under which it appears.
At issue in the case was the way the articles were presented to readers, the contention being that newspaper columns should not be permitted to be misleading about their true authorship and unjustifiably exploit somebody else's success and endeavour in this case Clark's acclaimed reputation as a leading diarist and author of political and military history.
The series of articles in question commenced in the Evening Standard on 27 March 1997 and continued as a regular feature.
Each article (with the exception of the first in the series) adopted the same format. The title, "Alan Clark's Secret Election/Political Diary" in large print followed by a photograph of Clark and, below this in much smaller print, a standfirst which, after one or two sentences about the plaintiff, contained words to the effect that Peter Bradshaw imagined how Clark might record events.
Numerous witnesses including politicians, barristers, solicitors, porters at Clark's London residence and other general members of the public gave evidence that they had been misled into believing that the articles were written by Clark.
One witness from Clark's constituency was so upset about "Alan Clark's" inappropriate and offensive comments about the flogging of two nurses arrested in Saudi Arabia, that she dictated a letter of complaint to the Evening Standard asking how he had ever become her representative in Parliament.
Another reader who was offended by "Alan Clark's" comments on Welsh devolution also fired off an angry letter to the Evening Standard stating that his "puerile comments about the Welsh being "sly, unlovely...' really [made his] Welsh blood boil".
Mr Justice Lightman found that a substantial number of readers had failed to focus on or take in the standfirst and had been misled into believing that the articles were written by Clark.
He added that the Evening Standard was not the type of publication which is read "word for word" rather something generally to skim-read looking for something of interest.
Judge Lightman held that the articles infringed Clark's rights under the law of passing off and s84 (1) of the Copyright Designs and Patents Act 1988.
Further, he was in no doubt that false attribution of the articles to Clark could cause serious damage to him and that his reputation and goodwill as an author and the prospective sales of his published works were placed at risk.
The decision in this case is important for authors and publishers. It will ensure the proper protection of their works from deceptive parody and their reputation from dilution.
The decision is no bar to the publication of parodies and the spoof in the Evening Standard is safe so long as it is made sufficiently clear by its format that Bradshaw and not Clark is the author of the column.