Nearly seven years on from the “secret” nuptials that started it all, the Douglas/Zeta Jones/ Hello!/OK! lawyers’ gravy train finally hit the buffers in the Lords. But did their verdict change UK law and is it important for advertisers? Tim Coles reveals all.
Who: Douglas/Zeta-Jones & OK! v Hello!
Where: House of Lords
When: 2nd May 2007
Law stated as at:30 May 2007
The final round of the Michael Douglas/Catherine Zeta-Jones & OK! v Hello! battle came to an end recently when the House of Lords upheld an appeal by OK!, completing the celebrity magazine's victory over its rival.
The dispute arose when Hello! purchased unauthorised photos of the celebrity couple's November 2000 wedding, when the Douglases had, in return for £1 million, granted OK! exclusive rights to publish authorised photos.
The Douglases and OK! initiated the court room battle when they obtained an interim injunction in the High Court. The injunction prevented Hello! from publishing the unauthorised photos on the basis that publication would be a breach of confidence and an invasion of the Douglases' privacy. Hello! appealed however and the injunction was discharged. Both magazines published their photos the following day. The case reached trial in 2003 where the Douglases and OK! successfully argued that Hello! was liable for breach of confidence. On appeal by Hello! however, the Court found that OK! had no cause of action against Hello! based on the law of confidential information. OK!'s cross appeal on the grounds that Hello! had unlawfully interfered with its business also failed. OK! responded by appealing to the House of Lords on two grounds: breach of confidence and unlawful interference with its business.
The House of Lords allowed OK!'s appeal in relation to breach of confidence, but rejected the claim of unlawful interference with its business. The Order of the Court of Appeal was restored accordingly.
A claimant must satisfy a three-step test for information to be subject to an obligation of confidence: (1) the information must be of a confidential nature; (2) the information must have been imparted in circumstances in which an obligation of confidence arises; and (3) there must have been a breach of that confidence by the person receiving the information to the detriment of the person imparting it. The Court held that:
1. the wedding photos were confidential information because they were not publicly available;
2. an obligation of confidence had arisen because: (a) the Douglases had not allowed anyone attending the wedding to take or communicate photos; (b) this obligation of confidence had been imposed for the benefit of OK! as well as the Douglases; (c) the duty was binding on Hello! who had knowledge of both OK!'s exclusive contract and that the photos they purchased were unauthorised; and
3. the publication of the unauthorised photos by Hello! was to the detriment of OK!.
The case ultimately turned on two issues. Firstly, there was a question mark over whether the photos constituted information that was capable of being protected by the law of confidentiality. In his dissenting judgment Lord Walker commented that the confidentiality of information should depend on its nature, not its market value. In contrast, in his leading judgment Lord Hoffman stated that the information was protected precisely because it was commercially valuable, rather than because it concerned the Douglases' images or private lives. The second factor in the success of OK!'s claim was that a duty of confidence arose for the benefit of both the Douglases and OK! as a result of the Douglases' high degree of control over photos taken at their wedding.
The judgments of the Lords also made it clear that OK!'s claim for breach of confidence did not come to an end when a selection of the photos was published. Confidentiality existed in every photo of the wedding rather than in the wedding as a whole. If OK! published their photos in different issues of the magazine, the law of confidence would continue to apply throughout the series of publications.
Additionally, the Lords confirmed that had the aim of publishing the authorised photos been to convey generic information (i.e. that the Douglases had married) then the photos would be in the public domain, and therefore potentially not protected by the law of confidence. However, because of the nature of the contract between the Douglases and OK! each photo was a separate piece of information over which OK! had exclusive rights.
Why this matters:
Traditionally English Law has not recognised a right of privacy, but in the seven years since the Douglases wedding and successful enforcement of their right to 'respect for private and family life' under the Human Rights Act, privacy law has come a long way.
Despite the assertions of the House of Lords that the final round of this case was not concerned with the concept of privacy, the effect of their judgment is that the law of privacy has been further developed and its robust nature has become apparent. Would-be wedding crashers and 'spoilers' beware, the owners of confidential information who have taken steps to control its use, and those with exclusive rights to deal with it, can expect protection from the law.
Osborne Clarke, London