Douglas v Hello!

This article was first published in April 2003

Where does this leave the law?The exciting vision of a new and free standing tort of privacy raised by Sedley LJ in the Court of Appeal in the first Douglas v Hello!appeal has evaporated following Mr Justice Lindsay's decision;instead the old fashioned the law of confidence the kind that was developed to protect trade secrets has sprung a new head..It can now be used by celebrities to control their image,and to protect commercial deals to publicise themselves.

Catherine Zeta Jones,Michael Douglas and Northern &Shell,the publishers of OK!, sued Hello!over the publication of six unauthorised photographs of the couple's wedding at the New York Plaza Hotel on 18 November 2000.After a bidding war between OK!and Hello!the couple had given OK!the exclusive rights to cover the wedding.In return,they received £1 million and retained copy and picture approval and control over later publication.The contract obliged the couple to provide strict and elaborate security measures to ensure that no other media had access to the wedding and that no one took photographs.

Rupert Thorpe,a freelance paparazzo, somehow evaded the extensive security and surreptitiously took photos of the groom and bride,her dress and the cake.Eduardo Sanchez Junco,Hello!'s editor in chief and the proprietor of Hello!'s Spanish parent company Hola SA,bought the rights to publish these photos in the UK,France and Spain from Philip Ramey,another paparazzo and photographic agent.

Two days later,learning that Hello!was about to publish the unauthorised photos, OK!obtained a High Court injunction to restrain publication.A few days later,the Court of Appeal discharged the injunction, relying on Hello!’s evidence on how the photos came into its hands (which was subsequently found to be false and misleading).Hello!proceeded to publish six of the unauthorised photos.The Douglases and OK!brought forward their plans to approve and publish the authorised photos, and both titles hit the news stands on the same day.

By the trial in February 2003,Hola SA and Eduardo Sanchez Junco had been added as defendants (described collectively with Hello!as the "Hello!defendants"),as were the Marquesa de Varela,a society fixer who had a long relationship with Hello!,Neneta Overseas Ltd,one of her companies and Philip Ramey,who took no part in the trial.

The 13 claims included breach of confidence,invasion of privacy (the Douglases alone),breach of the Data Protection Act 1998 (DPA),intention to damage and conspiracy to injure.The claimants succeeded against the Hello! defendants only for breach of confidence, breach of the DPA and an injunction to prevent further publication of the unauthorised photos 4 out of the 13 claims.Damages will be assessed separately.The privacy and conspiracy claims failed.

The claimants alleged and the judge agreed that the wedding was private.. Most of the guests were family or friends and there were elaborate arrangements to exclude gatecrashers and to ensure no one took pictures. Catherine Zeta Jones said that they wanted to ensure that they had the wedding of her dreams But the security was largly due to the need to protect the value of the commercial deal. £1 million had been paid and early disclosure could affect sales of the magazine and syndication.

Did the Douglases have a personal right of privacy, particularly since they were prepared to share their day with the readers of OK! and other later magazines? Could the law of confidence be invoked to protect a commercial deal, giving celebrities the right to control their images as a commodity, much like a trade secret?

Lindsay J found that all three claimants were entitled to protect their valuable commercial commodity and keep it secret until it suited them to disclose it. To succeed,they had to satisfy the three traditional elements of a breach of confidence;namely that:

1.the information had the necessary quality of confidence about it;

2.the information was imparted in circumstances importing an obligation of confidence; and

3.publication of the information was detrimental to the claimant.

The photos did have "the necessary quality of confidence".The wedding was held to be private. Lindsay J recognised that, despite being well known, the Douglases had the right to control their portrayal in the media as this can affect the value of their image and their careers. OK! too was entitled to protect its valuable trade secret the exclusive depiction of the wedding..

In view of the elaborate security, all those present, including Rupert Thorpe, were "shown" the wedding in circumstances importing an obligation of confidentiality. The judge considered that Thorpe knew, or ought to have known, that the claimants reasonably expected the private character of the event and the photographic representation of it to be protected. So too did Hello!. Although the Hello! Defendants had not commissioned the unauthorised photos, the judge considered there was enough to "afflict their conscience": they knew that OK! had an exclusive contract with the couple, the provisions such contracts include particularly concerning intrusion and unauthorised photography that a considerable sum had been paid for exclusive rights and that there had been elaborate security arrangements. A duty of confidence should be inferred from such facts. The Hello! defendants had indicated to paparazzi (who they knew could obtain access)in advance that they would pay well for photos. It was plain that the photos were taken surreptitiously. Yet they kept their eyes firmly shut to what was, at least, a trespass involved in taking the photos.

As a result of this "unconscionable" publication, Lindsay J held that the claimants suffered detriment. The Douglases had found the intrusion to be a "violation" which was "devastating". They had had to rearrange their plans to hasten their approval of authorised photographs, thus incurring otherwise unnecessary expenses and possibly suffering financial loss through loss of syndication receipts. OK! incurred the costs of bringing forward its coverage of the wedding and lost the kudos of its exclusive. It may also have suffered fewer sales and syndication receipts.

The claimants were held to be entitled to damages, to be assessed at a later hearing.

What about the claim for privacy? The judge declined to hold that there was an existing law of privacy under which the Douglases would be entitled to relief. He considered them adequately protected by the law of confidence; there was, therefore, no need for him to attempt to construct a law of privacy and it would be wrong of him to do so. However, his judgment suggests that some sort of privacy law is inevitable. He cautioned that, in cases where the existing law did not afford adequate protection to individuals whose rights to private and family life are infringed, the courts might have to address inadequacies if Parliament failed to "grasp the nettle". He said that a "glance at a crystal ball of, so to speak, only a low wattage, suggests that if Parliament does not act soon the less satisfactory course, of the courts creating the law bit by bit at the expense of litigants, and with inevitable delays and uncertainty, will be thrust upon the judiciary".

This case had been expected to introduce a new law of privacy following Sedley LJ's judgment in the Court of Appeal in November 2000 when the injunction against Hello!was lifted.But the Court of Appeal recent decision in Campbell v MGN, emphasised that,for a privacy complaint to be actionable,there has to be a breach of confidence.It will be interesting to see what the House of Lords has to say on that.

It was not necessary here for the court to balance the Article 10 right to freedom of expression against the Article 8 right to respect for private and family life. Rather, once breach of confidence was shown, the court had to consider the extent to which the Article 10 right was available. Lindsay J did not consider that freedom of expression had any "presumptive priority" where the conflict fell within the law of confidence. Although the Douglases did not complain to the Press Complaints Commission (PCC), whether or not the Hello! defendants complied with its code was crucial in determining the claimants 'entitlement to damages for breach of confidence. When considering whether to grant relief that might affect Article 10 rights, section 12 of the Human Rights Act obliges the court to pay particular regard to any relevant code in this case the PCC Code of Practice. Lindsay J found that, in contravention of the PPC code, the Hello! defendants knew or must have known that there was an unjustifiable intrusion into the Douglases' lives without consent and that it amounted to a failure to respect the couple's private and family lives. He considered that, if it was unacceptable to use long lenses to take pictures of people in private places without their consent, it must also be unacceptable to make surreptitious use of short lenses to take such pictures. That the photos were obtained by misrepresentation or subterfuge further breached the PCC code. The Hello! defendants either knew, or had they not closed their eyes to the truth, would have known and hence must be taken to have known, that that was the case. Therefore, Hello!’s Article 10 rights were "no trump card" but had to be balanced against the claimants' countervailing rights of confidence. In the absence of a public interest defence, and in the circumstances of the case, including breach of PCC code, he balance tipped in the claimants' favour.

Naomi Campbell's victory over The Mirror at trial for breach of her rights under the DPA first alerted the media to the risk of liability under this Act for publishing personal information about individuals, particularly surreptitious photos. There was considerable relief when the Court of Appeal subsequently ruled that the section 32 exemption available to the data processing of journalistic material prior to publication applied after publication as well. However, this exemption is only available when the publisher reasonably believes publication to be in the public interest. In this case, no public interest argument was raised, making it difficult for the defendants to avoid liability under this Act. Lindsay J made clear that breach of the DPA was not a separate route to recovery for damage and distress, over and above an award for beach of confidence. Accordingly, he said the award would be nominal.

This claim failed as the defendants' predominant motive was to secure a benefit for themselves, not to injure the claimants.

There has been much debate about celebrities ’ rights to control their portrayal in the media. Can those who court publicity complain when they don't like the attention? The Court of Appeal in Campbell v MGN accepted that they could if the information was private and there was no public interest in disclosure. In Campbell, Flitcroft and other similar cases, the celebrity never wanted the information to see light of day. Here, the claimants wanted to keep it under wraps until they themselves were ready to direct the full glare of publicity at it. Whether the material is or was about to be in the public domain was always a relevant consideration in determining if there was a breach of confidence. In this case, the "private" material the portrayal of the wedding was going to be made public in a week's time. But the couple wanted to ensure that only pictures that would be good for their careers were published. They also wanted to protect their valuable deal with OK!. Likewise, OK! wanted to protect its commercial asset. Lindsay J's decision allows them to do so.

Does this mean that celebrities can now claim that they were keeping private their activities, such as relationships which their friends and family but not the general public know about, in order to exploit them in their memoirs? If they had a book deal or some other commercial venture in mind, it would seem so.

To pre empt later argument, it may become more common for celebrities who participate in photo shoots or invite the camera to follow them to seek agreement that they will approve the pictures or copy in advance. This would enable them to argue later, if they need to, that they were always very careful to protect their image. What does it mean for those racing to get the news first to their readers? They must keep their eyes open to what deals may have been struck. Those who have secured exclusives will have the right to protect the commercial value in such deals. Any damages could be tantamount to a licence fee or an account of profits.

The irony of Hello!'s position is it could have published with impunity photos of the pre wedding dinner and of guests arriving and leaving. Its readers avid for pictures of the wedding of the year would have been interested as Hello! was due to come out a few days before OK!. But, by including a few grainy, dark (and expensive)photos of the wedding which were not in keeping with the usual quality of the magazine, and which did not really show anything of real interest to its readers, it has instead acquired a liability for damages and am possible liability for costs, said to run to millions. The winner of 9 out of 13 claims is really the loser.