OK! Magazine had won in 2003 on grounds that Hello! breached
rights of commercial confidence when it published the photos. But
according to yesterday's ruling, OK! did not actually have a right
of commercial confidence in the approved pictures.
This right of commercial confidence remained with the Douglases
and had not been transferred to OK! magazine, said the Court.
Background
The celebrity wedding took place in November 2000. The couple
sold the exclusive photo rights to the event to OK! magazine for £1
million. But a paparazzo intruder disrupted their plans when he
surreptitiously took some rather poor shots of the couple. These
were bought for publication in OK!'s rival magazine, Hello!
In April 2003 the High Court ruled that Hello! had breached
rights of commercial confidence by publishing the photos, and seven
months later awarded £1,033,156 to OK! in respect of the magazine's
commercial losses. The High Court then made only a small award to
Zeta-Jones and Michael Douglas.
This amounted to £3,750 each for their distress at the
publication of the unauthorised photos, £7,000 for additional costs
in having to help OK! bring forward the publication of the
authorised pictures, and £50 each under the Data Protection
Act.
OK! appealed the ruling, and yesterday a three judge panel at
the Court of Appeal upheld it in part, finding that Zeta-Jones and
Douglas had a right of confidentiality in respect of the authorised
photos, but that OK! did not. The Court also rejected a request by
the Douglases to increase their award.
The ruling
The Court was first concerned to stress that the law in this
area is undergoing rapid change, egged on by the European
Convention on Human Rights. This, and recent European cases, have
made it clear that the UK now has an obligation to protect "one
individual from an unjustified invasion of private life by another
individual" – and that it is down to the UK courts to make this
happen.
In the context of private information, such as wedding
photographs, the courts have turned to the law of confidentiality
for assistance, although as the Master of the Rolls, Lord Phillips,
said, when giving the opinion of the Court yesterday:
"We cannot pretend that we find it satisfactory to be required
to shoe-horn within the cause of action of breach of confidence
claims for publication of unauthorised photographs of a private
occasion."
Nevertheless, the Court found that the unauthorised photographs
of the wedding clearly showed aspects of the Douglases' private
life and as such could be subject to the law of
confidentiality.
The fact that the Douglases had reached an agreement with OK! to
take authorised photos could not be used as a defence by Hello!, as
it did not prevent the Douglases from arguing that their wedding
was a private affair, said the Court. It might, however, affect the
level of damages awarded.
The Court then considered whether the law of confidence could
cover the Douglases' right of commercial interest in information
about their wedding.
The answer was yes:
"We can see no reason in principle why equity should not protect
the opportunity to profit from confidential information about
oneself in the same circumstances that it protects the opportunity
to profit from confidential information in the nature of a trade
secret.
"Where an individual ('the owner') has at his disposal
information which he has created or which was private or 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".
However, the Court said that rights in confidential or private
information, such as photos of a wedding, which are capable of
commercial exploitation but are protected only by the laws of
privacy and confidence, are not actually transferable. Nor do they
amount to intellectual property rights.
OK! magazine, which had a licence only to publish the authorised
photographs – copyright in which was retained by the Douglases –
did not have a right to sue Hello! and the £1 million award was
therefore withdrawn.
The Court also suggested that a previous ruling, allowing an
injunction against the publication of the photos by Hello! to be
lifted, had been wrong.
Reactions to the ruling
"The judgment is a resounding win for Hello!" the magazine's
solicitor, Chris Hutchings, told the Independent newspaper. He said
that, as a result, Richard Desmond, whose company Northern and
Shell is the owner of OK!, "will now have to write a cheque to
Hello! for a very large amount of money indeed." It has been
suggested that total costs exceed £3 million.
Northern and Shell said that it welcomed the vindication of the
Douglases' case, but warned that the ruling was likely to result in
an increase in the number of "spoilers" run by rival publications,
seeking to reduce the impact of an exclusive story. It vowed to
appeal the judgment to the House of Lords.
