Discrimination & Privacy. IP laws protect Di's letters

Possession may be nine-tenths of the law, but not in the case of Princess Diana's love letters. Bina Cunningham discovers how her 'literary works' remain protected by law. Bina Cunningham is a partner at Willoughby & Partners. James Hewitt was free to read and even destroy the letters Diana wrote to him, but that is about all. Neither he, nor any newspaper, would have been entitled to reproduce the letters without Diana's (and now her estate's) permission.

Although there are no privacy laws in this country, applied correctly, our intellectual property laws can achieve the same results. Under the Copyright, Designs and Patents Act 1988, Diana's letters (regardless of any poetic or literary merit) are 'literary works' protected by copyright. Authors of original literary works (subject to certain qualifying rules) enjoy the exclusive right to reproduce those works. This right exists immediately on creation of the work and lasts for 70 years after the author's death.

Diana's private letters would therefore be protectable by copyright in this country. During her lifetime she would have been able to prevent the unauthorised publication here and in many other countries, by virtue of certain international conventions. Since her death, her rights have become enforceable by her estate and, of course, are subject to the terms of her will. Anyone who infringes copyright in Diana's letters may find themselves at the receiving end of an injunction and a writ.

There is another area of law which would have helped Diana during her lifetime and may possibly also assist her estate.

The common law of confidence has played an important role throughout history. In certain relationships, an obligation of confidence is implied and there is a duty to maintain the confidentiality of some types of material. For example, in the 1960s, the Duke of Argyll was restrained from publishing the intimate details of his marriage, because certain communications between husband and wife are subject to the duty of confidence and trust.

A third party may also be bound by that duty. It has been argued, for example, that if a private diary is found in a public place, the finder is bound by the duty of confidence not to read it or publish it. It is obvious that the contents of a private diary are confidential and not for public dissemination.

Although there are a number of defences which would normally be considered in copyright and breach of confidence actions, it is unlikely that any of these would succeed if someone tried to publish Diana's love letters.

Certain acts are permitted in relation to copyright works, including 'fair dealing' for the purpose of 'reporting current events'.

Newspapers often raise this in copyright infringement cases. It is likely that this would fail if a newspaper had tried to publish Diana's letters, because the contents of her letters are not 'current events' and the publication of her letters would not be 'fair dealing'. The alleged theft of Diana's letters could easily be reported without publishing the letters.

A defence which many infringers have raised in the past, is that publication or disclosure was necessary 'in the public interest'.

The defence has on many occasions succeeded, including a case where former employees of a company contacted newspapers to disclose confidential information that a particular intoximeter used by the police to conduct drink-driving tests may have been unreliable.

There is a huge difference between 'what is in the public interest' and 'what is interesting to the public'. Sensationalist information may well be interesting to some readers and may increase the circulation of certain newspapers – but clearly there is no real public benefit element.

Diana's letters were clearly intended to be private and read by one person alone. The newspapers seem to have respected her wishes, sparing her estate the expense of enforcing her intellectual property rights.