Law report: Format of parodied Clark diaries was deceptive

The format of parodies of the diaries of Alan Clark, published in the London Evening Standard, was such as to deceive a substantial number of readers into attributing their authorship to Mr Clark.

Clark v Associated Newspapers Ltd; Chancery Division (Mr Justice Lightman) 21 January 1998

The court granted an injunction to the plaintiff to restrain the defendant from publishing in the Evening Standard parodies of the plaintiff's diaries in their present form.

The plaintiff, an MP and an author with an established reputation, maintained that the form of the articles, written by Peter Bradshaw, was such that a substantial number of readers attributed them to the authorship of the plaintiff. The articles were parodies of his well-known diaries, published in 1993 in hardback and in 1994 in paperback, and which still enjoyed substantial sales.

The articles had appeared weekly from 27 March 1997 with the heading "Alan Clark's Secret Election Diary" and, after the General Election, "Alan Clark's Secret Political Diary", next to a photograph of the plaintiff. Under the heading was a standfirst with one or two sentences about the plaintiff followed by words to the effect that Mr Bradshaw (whose name was in capitals) imagined how the plaintiff might have recorded the events.

Geoffrey Hobbs QC and Emma Himsworth (Denton Hall) for the plaintiff; Peter Prescott QC and James Mellor (Titmuss Sainer Dechert) for the defendant.

Mr Justice Lightman said that the plaintiff invoked two rights to protection from false attribution of authorship: the statutory right under section 84 of the Copyright Designs and Patents Act 1988, and the common law right under the law of passing off.

It was for the judge to exercise his discretion whether a substantial body of readers of the Evening Standard had been or were likely to be misled more than momentarily and inconsequentially into believing that the plaintiff was the author of the articles, and whether the plaintiff, as an author with an established goodwill, had suffered or was likely to suffer damage in consequence.

On the issues of the existence of misrepresentation and probability of damage, his lordship could be assisted by the evidence of witnesses who had seen or read the articles, and of experts as to the features of the market for newspapers and other published works. The evidence of particular significance in the present case was that of rational men who had been deceived, and evidence of the degree of attention given by its readers to the contents of the Evening Standard, and in particular to the standfirst.

The question raised was whether by the adoption of the format chosen the defendant had succeeded too well in making the articles look real, and his lordship had reached the conclusion that it had. That was his own view without regard to the evidence of deception of the plaintiff's witnesses. The articles contained conflicting messages as to their authorship, and a substantial number of readers would be left with the impression, as the plaintiff's witnesses had been, that the plaintiff was the author.

The plaintiff had a substantial reputation as a diarist and his identity as author of the articles would plainly be of importance to readers of the Evening Standard in deciding whether to read the articles. That was reflected in the choice of format adopted and most particularly in the design of the heading, which was calculated to exploit the public recognition enjoyed by the plaintiff and the public interest which any diary written by him could be expected to generate. The consequent identification of the plaintiff as author was not sufficiently neutralised to prevent a substantial number of readers' being deceived.

There could be no doubt that for the defendant falsely to attribute the articles to the plaintiff could cause him serious damage: his reputation and goodwill as an author was placed at risk. He must be entitled to an injunction to restrain the defendant from continuing its present course of conduct. He had also suffered more than nominal damage, and was entitled to an enquiry as to damages.

It was important to make it quite clear that the judgment was no bar to publication of parodies. The vice in the present case lay in the format of the articles. The defendant could continue to publish parodies of the diaries so long as there was no attribution of authorship to the plaintiff, and it was made sufficiently clear that Mr Bradshaw, and not the plaintiff, was the author.

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksAn introduction to the ground rules of British democracy
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Massage Therapist / Sports Therapist / Physio / Osteopath

£12000 - £24000 per annum: Recruitment Genius: An opportunity has arisen for o...

Recruitment Genius: Account Manager / Sales Executive - Contract Hire

£35000 - £60000 per annum: Recruitment Genius: This industry leader provides c...

Recruitment Genius: Project Coordinator

£28000 - £30000 per annum: Recruitment Genius: A Project Coordinator is requir...

Recruitment Genius: Area Sales Manager - Midlands

£20000 - £25000 per annum: Recruitment Genius: This is an exciting opportunity...

Day In a Page

John Palmer: 'Goldfinger' of British crime was murdered, say police

Murder of the Brink’s-MAT mastermind

'Goldfinger' of British crime's life ended in a blaze of bullets, say police
Forget little green men - aliens will look like humans, says Cambridge University evolution expert

Forget little green men

Leading evolutionary biologist says aliens will look like humans
The Real Stories of Migrant Britain: An Algerian scientist adjusts to life working in a kebab shop

The Real Stories of Migrant Britain

An Algerian scientist struggles to adjust to her new life working in a Scottish kebab shop
Bodyworlds museum: Dr Gunther von Hagens has battled legal threats, Parkinson's disease, and the threat of bankruptcy

Dying dream of Doctor Death

Dr Gunther von Hagens has battled legal threats, Parkinson's disease, and the threat of bankruptcy
UK heatwave: Temperature reaches 39.8 degrees on Central Line - the sweatiest place in London

39.8 degrees recorded on Tube

There's hot (London) and too damn hot (the Underground). Simon Usborne braved the Central line to discover what its passengers suffer
Kitchens go hi-tech: From robot chefs to recipe-shopping apps, computerised cooking is coming

Computerised cooking is coming

From apps that automatically make shopping lists from your recipe books to smart ovens and robot chefs, Kevin Maney rounds up innovations to make your mouth water
Jessie Cave interview: The Harry Potter star has published a feminist collection of cartoons

Jessie Cave's feminist cartoons

The Harry Potter star tells Alice Jones how a one-night stand changed her life
Football Beyond Borders: Even the most distruptive pupils score at homework club

Education: Football Beyond Borders

Add football to an after-school homework club, and even the naughtiest boys can score
10 best barbecue books

Fire up the barbie: 10 best barbecue books

We've got Bibles to get you grilling and smoking like a true south American pro
Wimbledon 2015: Nick Bollettieri - Junk balls and chop and slice are only way 5ft 1in Kurumi Nara can live with Petra Kvitova’s power

Nick Bollettieri's Wimbledon Files

Junk balls and chop and slice are only way 5ft 1in Kurumi Nara can live with Petra Kvitova’s power
Ron Dennis exclusive: ‘This is one of the best McLaren teams ever – we are going to do it’

‘This is one of the best McLaren teams ever – we are going to do it’

Ron Dennis shrugs off a poor start to the season in an exclusive interview, and says the glory days will come back
Seifeddine Rezgui: What motivated a shy student to kill 38 holidaymakers in Tunisia?

Making of a killer

What motivated a shy student to kill 38 holidaymakers in Tunisia?
UK Heatwave: Temperatures on the tube are going to exceed the legal limit for transporting cattle

Just when you thought your commute couldn't get any worse...

Heatwave will see temperatures on the Tube exceed legal limit for transporting cattle
Exclusive - The Real Stories of Migrant Britain: Swapping Bucharest for London

The Real Stories of Migrant Britain

Meet the man who swapped Romania for the UK in a bid to provide for his family, only to discover that the home he left behind wasn't quite what it seemed
Cheaper energy on the way, but it's not all sunshine and rainbows

Cheaper energy on the way, but it's not all sunshine and rainbows

Solar power will help bring down electricity prices over the next five years, according to a new report. But it’s cheap imports of ‘dirty power’ that will lower them the most