According to one privacy law expert, the ruling means that
courts can exert a greater degree of control over paparazzi
photographs than previously.
"OK! was finally vindicated in its battle against the 'spoiler'
photographs and the highest court has expressed its distaste for
the argument that, in the hard commercial world of the celebrity
magazine, all is fair in the battle for circulation," said Rosemary
Jay, head of the information law team at Pinsent Masons, the law
firm behind OUT-LAW.COM. "It is finally clear which side of the
line the use of paparazzi photographs falls on."
Rosemary Jay's comments have been reproduced in full below.
In his ruling, Lord Hoffman said the long-running case was not a
privacy case but one about commercial confidentiality. It should
not, he said, turn on the emerging privacy law developing in the
English courts but on celebrity photographs as commercially
valuable pieces of information and nothing more.
The Law Lords' decision overturned a Court of Appeal ruling,
which itself had reversed the High Court's original ruling backing
OK!.
Though they were split, the majority of the Lords decided that
the publication in Hello! of pictures taken by a New York
photographer who illicitly gained entry to the wedding was a breach
of confidence.
Lord Hoffman wrote: "The point of which one should never lose
sight is that OK! had paid £1m for the benefit of the obligation of
confidence imposed upon all those present at the wedding in respect
of any photographs of the wedding. That was quite clear."
He continued: "Unless there is some conceptual or policy reason
why they should not have the benefit of that obligation, I cannot
see why they were not entitled to enforce it. And in my opinion
there are no such reasons. Provided that one keeps one’s eye firmly
on the money and why it was paid, the case is, as [initial High
Court judge] Lindsay J held, quite straightforward."
The ruling was based on the view that an obligation of
confidence existed even for people, such as the rogue photographer,
who had not explicitly agreed to it.
"It was agreed in the appeal trial that the Douglases had gone
to great lengths to keep their wedding 'private' in the sense of
controlling all the photographs and not allowing unauthorised
guests and so on," said Jay. "It was agreed that they had succeeded
in creating an obligation of confidence owed to them by all those
who went to the wedding, whether invited or not, and that the
taking of the photographs without consent and the subsequent
publication was a breach of their personal rights of
confidentiality."
The photographer who gained admission to the wedding sold the
pictures to Hello!, which began preparing to publish them. OK!,
realising this, rushed out its own edition of its magazine two days
ahead of the planned date. It published its edition slightly
earlier than Hello!.
One of the Law Lords, Lord Nicholls of Birkenhead, said that the
obligation of confidence disappeared once OK! had published the
official photographs because there was little difference between
the photos.
"This seems to me a point on which theory is in danger of losing
touch with reality," said Hoffman, disagreeing. "It is certainly
the case that once information gets into the public domain, it can
no longer be the subject of confidence. Whatever the circumstances
in which it was obtained, there is no point in the law providing
protection. But whether this is the case or not depends on the
nature of the information.
"[Photographer] Mr Thorpe was subject to an obligation of
confidence in respect of the pictures which he took. Hello!, by
reason of the circumstances in which they acquired the pictures,
were subject to the same obligation. How could it be destroyed by
OK!’s publication of other photographs a few hours earlier?" said
Hoffman.
"In this case, the point of the transaction was that each
picture would be treated as a separate piece of information which
OK! would have the exclusive right to publish. The pictures
published by OK! were put into the public domain and it would have
had to rely on the law of copyright, not the law of
confidence, to prevent their reproduction," he said. "But no other
pictures were in the public domain and they did not enter the
public domain merely because they resembled other pictures which
had.
"Why was Hello! willing to pay Mr Thorpe so much money for
information which was already in the public domain? Why did the
judge find that the publication of information which did not, in
Lord Nicholls’s words, 'call for legal protection', had caused
substantial financial loss to OK!?"
The case has been controversial from the start, and has touched
on a wide range of issues, said Jay. "The whole debate skirts some
pretty thorny ground. Would ruling for OK! mean that the House of
Lords was endorsing a right of personality, the right to sue for
control over image? Would it mean that the law was moving to
protect 'character merchandising'? The House seems determined to
avoid all those issues."
"Lord Hoffman took the straight view that if
the arrangements that gave rise to the confidentially were entered
into for the benefit of OK! then OK! was entitled to take the
benefit. He held that the intruder and hence in its turn Hello!
owed an obligation of confidence to OK! which they had deliberately
breached and OK! was entitled to win the case."
Rosemary Jay's comments in full
To make sense of today's judgment by the House of Lords you have
to bear in mind the arguments and the nature of the judgment in the
last round in the Court of Appeal.
The Douglases took action against Hello! jointly with OK!. The
Court of Appeal considered the confidentiality rights of the two
parties – that is the Douglases on the one hand and Hello! on the
other. It was agreed that the Douglases had gone to great lengths
to keep their wedding 'private' in the sense of controlling all the
photographs and not allowing unauthorised guests and so on. It was
agreed that they had succeeded in creating an obligation of
confidence owed to them by all those who went to the wedding,
whether invited or not, and that the taking of the photographs
without consent and the subsequent publication was a breach of
their personal rights of confidentiality.
The view seems to have been taken (and was made explicit by
Hoffman in the latest judgment) that even though the law in the US
would have allowed their right to confidentiality to be overridden
by the primacy of the right to freedom of speech in the US, the
confidentiality persisted and there was no override in the UK.
Accordingly, the publication of the photographs in the UK was a
breach.
However, the Court of Appeal went on to say that the rights
applied only to the Douglases and so OK! had no rights that had
been breached. As a result the award of damages to OK! was
overturned. That is why OK! went to the Lords, and why they went
alone. The Douglases had won their part of the case and there was
nothing more they could do to support OK!.
The House of Lords was not therefore looking at privacy in the
normal sense but whether OK! could claim the benefit of the
confidentiality that the Douglases had imposed on guests, and
whether a breach of that could allow OK! to sue. As Lord Walker put
it, any successful claim by OK! "has to be based on a right to
short term confidentiality for a commercial secret".
The whole debate skirts some pretty thorny ground. Would ruling
for OK! mean that the House of Lords was endorsing a right of
personality, the right to sue for control over image? Would it mean
that the law was moving to protect 'character merchandising'? The
House seems determined to avoid all those issues. In fact in the
judgment Lord Nicholls in paragraph 253 is quite trenchant in
setting out what they are not doing.
So what did they decide?
Lord Hoffman took the straight view that if the arrangements
that gave rise to the confidentially were entered into for the
benefit of OK! then OK! was entitled to take the benefit. He held
that the intruder, and hence Hello!, owed an obligation of
confidence to OK! which they had deliberately breached. OK! was
entitled to win the case.
Lord Nicholls demurred. The unauthorised photographs did not
contain anything secret that could give rise to a right and OK! had
no claim, he said.
Lord Walker also demurred. In essence he said that OK! could
only claim for breach of confidence in information which was of its
nature confidential, such as a trade secret. The mere fact that the
Douglases sought to restrict entry to their wedding did not make
the spectacle confidential and there could be no corresponding
rights of confidence in the picture. To hold that such a right
existed would be to "go some way to creating an unorthodox and
exorbitant form of intellectual property," he said at paragraph
297.
Baroness Hale and Lord Brown gave shorter judgments. They agreed
with Lord Hoffman and so OK! has carried the day. Baroness Hale's
comments on the OK! case were brief and to the point. She could see
no reason in principle why the right to the photographic images to
the wedding should not be protected . They were undoubtedly a
secret and a valuable commercial one. In her view there was no
extension of intellectual property rights in a finding that the law
would protect them.
Lord Brown also had no difficulty in regarded the sight of and
the photographs of the wedding spectacle as commercially
confidential information and that every photograph was imbued with
this right. Thus the publication of some photographs did not
destroy the confidentiality which could still be breached by
publication of other unauthorised ones.
OK! was finally vindicated in its battle against the "spoiler"
photographs and the highest court has expressed its distaste for
the argument that, in the hard commercial world of the celebrity
magazine, all is fair in the battle for circulation. It is finally
clear which side of the line the use of paparazzi photographs falls
on.
