You can have your (wedding) cake and eat it
Douglas v Hello! Ltd (Nos 5 and 6) [2005] ECWA 595



The Court of Appeal has handed down judgment in the long-running privacy action brought by Catherine Zeta Jones, Michael Douglas and OK! Magazine. In true review style, I will give away the ending now. While confirming emphatically that the courts do have an obligation to protect privacy, the judgment upheld the trial judge's award in damages to the happy couple but overturned damages of £1 million to OK!.



The history of the matter is well rehearsed: Hollywood royalty, celebrity wedding, ban on photography except for couple's own photographer, exclusive deal with OK!, wedding infiltrated, unauthorised photographs taken, proposed publication of unauthorised photos in Hello! (OK!'s rival), injunction granted, injunction overturned, spoiler published in Hello!, authorised photos published the same day, claim for damages.



The grounds for the Douglases' claims were breach of commercial confidence, invasion of privacy and breach of the Data Protection Act 1998 (DPA), and from OK!, breach of commercial confidence and a claim based on the economic torts of conspiracy and unlawful interference with trade. Before Mr Justice Lindsay, all claimants were successful and were awarded £14,600 each to the individuals and £1 million to the company.



Hello! appealed, arguing that while OK! may have had an agreement to publish authorised shots, it had no cause of action over the publication of unauthorised shots. It also appealed part of the damages award made to the Douglases. OK! counter-appealed on the dismissal of its economic tort claims.



One significant pronouncement was that relating to the obligations of member states in respect of privacy, following the European Court of Human Rights (ECtHR) case of Caroline von Hannover v Germany. As reported by the chambers 5 Raymond Buildings (on its Web site) - the home to three of the four counsel on both sides of the case (the other is at 11 South Square) - the case 'recognises for the first time that, following the von Hannover decision, the courts have a duty to recognise and protect privacy rights'. The Court of Appeal accepted that 'the ECtHR has recognised an obligation on member states to protect one individual from an unjustified invasion of private life by another individual and an obligation on the courts of a member state to interpret legislation in a way which will achieve that result'. This earns the case its place as a landmark decision in the development of the law of privacy in the UK.



In recognising that right, how did the Court of Appeal protect it? It found that the wedding was a private matter, that photographs had been taken surreptitiously in circumstances where the photographer knew that his presence at the wedding was forbidden, that those responsible for purchasing the photographs were aware that there must have been some trespass or deceit, that Hello! must have known that the information in the photographs was fairly and reasonably to be regarded as confidential or private, and that the Douglases had a reasonable expectation that it would remain so. Accordingly, it found that 'photographs of the wedding plainly portrayed aspects of the Douglases' private life and fell within the protection of the law of confidentiality, as extended to cover private or personal information'.



The Court of Appeal did not interfere with the 'very modest sum in the context of this litigation' of £3,750 to each of the couple for distress, given that no challenge had been made to that amount (they were also awarded £50 each under the DPA). But the award of £7,000 in wasted costs for the labour and expense of editing the selection of photographs for OK! at short notice was challenged.



Did the couple have 'a commercial interest in making public information about their wedding, which they were entitled to protect' to give rise to such a damages award? The court's decision on this would impact heavily on the claim by OK! for compensation, as this 'much greater award of damages was premised on a finding that this right was shared with them'. The defendants argued that by entering into an agreement to publish authorised photographs elsewhere, the couple forfeited their rights to protect the unauthorised photographs.



But the court was having none of it. 'Once intimate personal information about a celebrity's private life has been widely published, it may serve no useful purpose to prohibit further publication,' it said, but went on: 'The same will not necessarily be true of photographs.'


Photographs are to be treated differently; there is a fresh invasion of privacy when every new viewing takes place, potentially causing more distress given that photographs can 'capture every detail of a momentary event in a way which words cannot' and which 'can portray, not necessarily accurately, the personality and the mood of the subject of the photograph'. Allowing some of the wedding to be seen did not make it public and the Douglases did not thereby lose their rights to protect that privacy. 'The offence is caused because what the claimant could reasonably expect would remain private has been made public,' said the Court of Appeal. Offering someone a piece of your cake does not give someone else the right to gobble up the rest.


While recognising the right of a celebrity to make money out of publicising private information might 'break new ground', the court did not find this to be 'any drawback'. It concluded with the following principles: 'Where an individual ('the owner') has at his disposal information which he has created or which is private personal and to which he can properly deny access to third parties, and he reasonably intends to profit commercially by using or publishing that information, then a third party who is, or ought to be aware of these matters and who has knowingly obtained the information without authority, will be in breach of duty if he uses or publishes the information to the detriment of the owner.'


Yes, the Douglases could protect their privacy, while at the same time seeking to exploit commercially otherwise private information should they wish to do so. Quite simply, they could have their cake and eat it.


But this is one cake that was not for sharing. The Douglases had agreed with OK! to license it the exclusive use worldwide, for nine months, of authorised photographs in which they retained joint copyright with the photographer. However, the contract 'did not purport to transfer to or share with OK! the right to use, or even know of, any photographic information about the wedding other than the approved photographs released to OK!'. Therefore, OK! had no right to complain over the use of the unauthorised photographs at all, only having a licence - albeit an exclusive one - to use the authorised photographs.


'We have concluded,' said the court, 'that confidential or private information, which is capable of commercial exploitation but which is only protected by the law of confidence, does not call to be treated as property that can be owned and transferred.' While the Court of Appeal also considered the question of the economic torts, OK! did not fair any better in this regard.


The judgment concluded with a potentially powerful obiter that overturning the initial injunction had been wrong in its view, as damages were not a sufficient compensation to the successful claimants. This may have a significant impact on the courts' readiness to grant interim injunctions in breach of confidence cases in future - or at least on claimants' readiness to suggest that they should.


After years of litigation and millions of pounds in legal costs, at least the law of privacy and commercial confidence is clear. Or is it? The right to privacy is still being shoehorned into the longstanding tort of confidence. Or is this the landmark case that establishes a tort of privacy as suggested by media law specialist counsel Paul Downes at a 2 Temple Gardens seminar recently?


The question of injunctions will also no doubt be fought out further. Additional clarity should come out of the next instalment of the tale at the perhaps inevitable appeal to the House of Lords. So dust off your wedding hat, there will be another outing for it after all.


Link: www.5rb.co.uk/casereports/detail.asp?case=267 decision in Caroline von Hannover v Germany




By Amber Melville-Brown, consultant, David Price Solicitors & Advocates