By Amber Melville-Brown, David Price Solicitors and Advocates, London


Case closed?

Douglas v Hello! Ltd (No8) (HL) [2007] UKHL 21, 2 May 2007

Catherine Zeta Jones and Michael Douglas will shortly be celebrating their seventh wedding anniversary; a gift of copper is the traditional gift. No doubt OK! will be hoping that the recent House of Lords judgment will prove to be a copper-bottomed conclusion for them, given that this decision has a potentially profound impact on the power of the scoop and the ability to protect it.



The Douglases won their claim in breach of confidence when, in 2005, the Court of Appeal upheld Mr Justice Lindsay's decision that the publication of unauthorised photographs of the private event of their wedding infringed their hybrid right to privacy and commercial confidentiality (see [2005] Gazette, 14 July, 30).



At first instance, OK! too was awarded damages, a significant amount to reflect the losses arising out of the actions of Hello! in spoiling its scoop. But this was overturned on appeal, the court finding that while it had an exclusive right to publish the authorised photographs, OK! had no such right as regards the unauthorised ones published by Hello!



Before the Lords, OK! argued that it too was owed a duty of confidence in respect of any photographic image of the event, and that publication of the unauthorised photographs constituted an unlawful interference with its business. Hello! argued that any confidence in the photographic representation of the event was destroyed when OK! - which had to rush to get is exclusive out when it heard its rival was heading for the presses - published its own authorised photographs.



The majority found for OK! in the confidence claim. Here, the claimant must show that there has been unauthorised use of information of a confidential nature, imparted in circumstances importing an obligation of confidence, to the detriment of the party to whom the confidence was owed. In his majority judgment, Lord Hoffmann warned his fellow law lords that one should 'avoid being distracted by the concepts of privacy and personal information', and he stressed that the claim by OK! 'is to protect commercially confidential information and nothing more'. OK! had no claim to privacy, either its own or 'parasitic upon' that of the Douglases. But the obligation of confidence imposed on the photographic images of the wedding was for the benefit not only of the Douglases, but also of OK!, which had paid handsomely for the ability exclusively to photograph the event. According to Lord Hoffmann: 'The point of which one should never lose sight is that OK! had paid £1 million for the benefit of the obligation of confidence imposed upon all those present at the wedding in respect of any photographs of the wedding... Provided that one keeps one's eye firmly on the money and why it was paid, the case is, as Lindsay J held, quite straightforward.'



Both Lords Nicholls and Walker were troubled by the fact that the information was intended to be published in photographic form to the world at large, not kept secret. Furthermore, they considered there to be nothing in the unauthorised photographs that was not in the authorised photographs, so that by publishing its pictures, OK! put the information into the public domain, making it no longer capable of protection. But Lord Hoffmann dismissed this as 'a point on which theory is in danger of losing touch with reality'. The obligation of confidence was to protect the commercial interests of OK!, and the photographs published by Hello! were in 'a generic class of commercial confidential information that OK! was entitled to protect'.



The claim for causing loss by unlawful means was not made out. The cause of action was illustrated by Lord Hoffmann by reference to the 1790 case of Tarleton v M'Gawley (1 Peake NPC 207), in which the master of the Othello, anchored off the coast of West Africa, was liable in the tort for depriving a rival British ship of trade by using his canon to drive away a canoe approaching from the shore with the intention of doing business with the British ship.



But 200 years on, Lord Hoffmann was not able to find that publication of the unauthorised pictures deprived the claimant from doing business with Douglas and Zeta Jones, paddling their wedding canoe up to the good ship OK!. Hello! did nothing unlawful, nothing to 'interfere with the liberty of the Douglases to deal with OK! or perform their obligations under their contract. All it did was to make contractual rights less profitable to OK! than they would otherwise have been'.



Had the circumstances been different, though, and unlawful means been used, it would not have been enough to avoid liability for Hello! to argue that it did not intend to cause loss, only to profit itself. To find otherwise would 'enable virtually anyone who really has used unlawful means against a third party in order to injure the plaintiff to say that he intended only to enrich himself, or protect himself from loss'.



The lengthy judgments of the Lords, and the fact that the case was only decided on a 3:2 majority, indicate that there is still some debate about this complex area of law. Indeed, Baroness Hale suggested that much could be said for having 'a single majority opinion to which all have contributed and all can subscribe without further qualification or explanation. There would be less grist to the advocates' and academics' mills, but future litigants might thank us for that'.



But differences of opinion there were. Lord Walker, for example, did not accept that the law of confidentiality should 'afford the protection of exclusivity in a spectacle'; while a newspaper might be granted the exclusive rights to all pictures of a sporting event for example, 'if the event was a motor rally or a marathon foot-race held on public roads, [exclusivity] would be unachievable'.



It would seem that, for the time being at least, this decision gives the green light to celebrities to protect and control their confidential information, including the photographic representations of certain private events, while retaining the right, commercially, to exploit it with a chosen publisher, and to do so safe in the knowledge that if another seeks to spoil the scoop, both parties to that agreement - celebrity and publisher - may seek redress in the courts.



Lord Hoffmann accepted the concern that this decision might engender: 'Some may view with distaste a world in which information about the events of a wedding... should be sold in the market in the same way as information about how to make a better mousetrap. But being a celebrity or publishing a celebrity magazine are lawful trades and I see no reason why they should be outlawed from such protection as the law of confidence may offer.'



The cynic might suggest that this cements a dangerous Faustian pact between celebrity and publisher to the detriment of independence and editorial integrity, resulting in readers being fed not the truth but the truth according to the celebrity. But the optimist will argue that the courts are well able to balance the competing rights of free speech, privacy and reputation and that, should this unattractive possibility come to fruition, the courts will ensure that they do something about it.