Both sides claimed victory in the much-publicised case brought by Michael Douglas and Catherine Zeta Jones and the publishers of OK! magazine against Hello! magazine (and various associated parties) relating to the publication by Hello! of paparazzi photographs of the couple's New York wedding. Who really won?
Background
The couple had entered into an agreement with OK! magazine under which the magazine paid GBP1 million for exclusive rights to publish wedding photographs selected by the couple. The couple were required to "use their best efforts" to ensure that no other media were permitted access to the wedding, that no guests or anyone else present should be allowed to take photographs and to "take all reasonable means" to provide such security as was necessary to ensure that such media or third parties were unable to gain access to the wedding. Despite extensive security arrangements, including the "frisking" of the entire Welsh Choir, a paparazzi photographer gained entry to the function and took several photographs of the couple.
After learning of the existence and imminent publication of the unauthorised photographs, the claimants obtained an ex parte injunction to stop Hello! publishing the photographs. Hello! immediately appealed and was successful in having the injunction lifted. Publication of the photographs followed. At the full trial, Mr Justice Lindsay considered a number of claims brought by the Defendants.
Breach of confidence
As well as a claim by the Douglases for breach of a duty of confidence owed to them personally, all three claimants claimed that publication of the photographs was a breach of commercial confidence.
Mr Justice Lindsay decided that the Douglas wedding reception and rights to photography of the event could be regarded as a commodity or trade asset, and could as such be protected by the law of confidence. The photographs did have the necessary quality of commercial confidentiality, as was borne out by the bidding war between Hello! and OK! for the exclusive rights to their publication. Both the paparazzi photographer Rupert Thorpe and Hello! knew of the private nature of the event and a duty of confidence did extend to them. Both OK! and the couple had suffered financial detriment by the publication of the photographs by Hello!.
All three elements of the law of confidence were therefore made out, at least in relation to the "commercial" confidence claim. The judge made clear that he would have come to the same decision on the "personal" claims for beach of confidence by the Douglases, although he conceded that these claims may have been weakened by evidence that the couple had sold photographs of the event and intended that they should be published.
In deciding whether relief was appropriate, it was necessary to balance the rights of the claimants against the rights of the defendants to freedom of expression under the Human Rights Act 1998. There is no "presumptive priority" to be given to the media's right to freedom of expression, and the Human Rights Act provides that regard should be given to any relevant privacy code – in this case the Press Complaints Commission (PCC) code. The PCC Code had been breached, since there had been an intrusion into the private lives of the Douglases without their consent, and outside the scope of any relevant exceptions, including that of public interest.
A number of other defences raised by Hello! were also unsuccessful. Hello! argued that the Douglases were not seeking confidentiality, but control, and that their agreement with OK! for publication of authorised photographs of the wedding and their intention to make such photographs public negated any rights they may have had in confidence. The judge held, however, that it would not be sensible to deny relief where the claimant had intended to publish confidential commercial information. An argument that the Douglases had deliberately sought publicity and therefore lost the right to insist upon confidentiality also failed, although it was accepted that where an individual who had publicised a certain area of his or her life, the protection may be lost in that particular area and that, following the recent Naomi Campbell case, there may be a public interest in correcting an untrue image fostered by a claimant.
Privacy
Mr Justice Lindsay declined to find that there was any existing law of privacy which would entitle the Douglases to relief. Any such right could only arise where English law was so inadequate to protect an individual's rights as to fall short of compliance with the European Convention on Human Rights and the Human Rights Act. In this case the Douglases were protected by the law of confidence, so there was no "hole" in the law which had to be filled. The Judge noted that recent case law had shown that UK law could be inadequate where the law of confidence did not apply, but that this inadequacy should be dealt with my Parliament before the Courts were required to do so.
Data Protection
Following the Naomi Campbell decision, Mr Justice Lindsay held that the defendants were "data controllers", the photographs were "personal data" and that their publication in the UK and associated acts constituted "data processing" under the Data Protection Act 1998.
The exemption for "journalistic purposes" which had applied in the Campbell case was not relevant here, because it was not proved that the defendants reasonably believed that publication of the photographs would be in the public interest. An argument that the data processing was fair for the purposes of the act because it was "necessary for the purposes of legitimate interests pursued by the data controller" also failed (although it was held that Hello! did have such a legitimate interest) because of the prejudice caused to the legal rights of the Douglases. While there had been breaches of the Data Protection Act, the Judge held that this entitled the Douglases only to nominal damages.
Ancillary claims
The remaining claims added nothing to a successful claim for breach of confidence, but the judge held in any event that none of them could succeed.
Damages
The trial was only on issues of liability, and there will be a further hearing on the quantum of damages. As to the measure of damages, Mr Justice Lindsay held that exemplary damages would not be appropriate since Hello!'s behaviour could not be described as giving rise to a sense of outrage. It was rather a form of journalism which had been used by both parties in the past. Similarly, Hello!'s behaviour had not been so flagrant or offensive as to justify an award of aggravated damages. The Judge did find that the unauthorised photographs should not be republished.
We understand that Hello! is considering an appeal, but that a final decision will not be made until the conclusion of the hearing on quantum, likely to be held in the Autumn.
For further information please contact Susan Barty by telephone on +44 (0) 207 367 2542 or by email at susan.barty@cms-cmck.com, Stephen Whybrow on telephone +44 (0) 207 367 2175 or by email at stephen.whybrow:cmck.com or Victoria Baker on telephone +44 (0) 207 367 3451 or by email at victoria.baker@cms-cmck.com.
