The case of Associated Newspapers Ltd v HRH Prince of Wales [2006] EWCA Civ. 1776 pertains to the hand-written journals kept by Prince Charles which were provided to Associated Newspapers Ltd. by an employee of his, in breach of her employment contract, to be published by The Sunday Mail. The claim was two-fold: (i) breach of confidence, and (ii) infringement of copyright. The prime issue before the court was the conflict between the right of privacy of the Prince under Article 8 of the European Convention on Human Rights, and the right of freedom of expression of the press under Article 10 of the same Convention.

The Court first sought to clarify whether the contents of the written journal were private and confidential under Article 8. Following from two previously (in)famous decisions, Michael Douglas v Hello! [2005] EWCA Civ 595, and Naomi Campbell v MGN Ltd [2004] UKHL 22, the Court of Appeal held that the contents of the journals were 'obviously private'. Although seen by the Prince's staff and circulated by him to selected people, the diaries were still confidential and the Prince had a 'reasonable expectation' for the same to remain private. The staff were under contractual duty of confidentiality and so were other recipients of the journals who were not expected to publish the same without the consent of the Prince.

Following the decision of the European Court of Human Rights in Von Hannover v Germany (2005) 40 EHRR, a distinction has to be made between information this is of 'public interest' and that which is of 'interest to the public'. The crucial test is whether the information is merely about the private life of a public figure or whether it 'contributes to a debate in a democratic society where the press acts as watchdog'. Here, the question was whether the information (being political comments made by the Prince) should lose its privacy for the sake of freedom of expression under Article 10 on the grounds of public interest, taking into consideration the fact that the maker of the information had a reasonable expectation that this information would remain confidential. Having analysed the content of the journals, the court applied a proportionality test to determine what, if any, of the information would support a breach of confidence on the grounds of public interest.

In the final analysis, the Court held that the content of the journals were confidential in nature and it was not the case that the disclosure was in the public interest, even if the relevant content concerned a public figure. Moreover, it was held, that there was a public interest that required employees to respect obligations of contractual confidentiality bestowed upon them and preserving the confidentiality of private journals in private offices.

The claim for copyright in the materials was admitted but was defended on the grounds of fair dealing under s.30(2) of the Copyright, Designs and Patents Act, 1988. The Court upheld the decision at first instance that although the article reported current events, the quotations from the journal were not current and amounted to infringement of copyright. The second contention under s.30(1) that the publications were criticisms of a work and hence allowed under fair dealing was denied because the publication itself could not stand the scrutiny of being a public event entitled to publication.

The case signifies the balance that is required to be struck between the rights of privacy and rights of freedom of expression and the limits on the commodification of information on the private life of public figures based on the nature of the information itself. Intriguingly, from a practical and commercial perspective, the court's emphasis on employee confidentiality in such cases, irrespective of the public persona of the diarist or letter writer, may become an increasingly important issue in the future.