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.