Following the Court of Appeal’s recent verdict, we look under the hype of the Hello!/OK!/Zeta-Jones/Douglas wedding photo case and identify signposts for marketers in the legal deliberations on rights of privacy and free speech.
Who: Hello! OK! Michael Douglas and Cathe Michael Douglas and Catherine Zeta-Jones
When: December 2000
Where: Court of Appeal, High Court, London.
Following the Appeal Court's refusal to grant OK! an injunction preventing the distribution of Hello!'s "spoiler" issue featuring unofficial photographs of the much hyped, "private" Douglas/Zeta-Jones wedding (as reported here on marketinglaw recently) the Court of Appeal issued its reasoned findings.
On the face of it, they said, although an injunction had been refused, they could see no fundamental reason why OK! and the happy couple should not be able to recover damages at trial for the disclosure of the unauthorised photographs, provided the underlying factual case could be proved.
The judgement has been hailed as the birth of a new right of privacy in the United Kingdom, a right underpinned by the Human Rights Act 1998 ("HRA") and existing quite separately from the law of breach of confidence. Were the commentators right? All the appeal judges certainly indicated that a right to damages could flow either from extending the existing law of breach of confidence to situations where, like here, there was no direct relationship of trust and confidence between the Claimant and the intruder who smuggled in a camera. Alternatively they could make new law by giving the HRA so called "horizontal effect".
The uncontroversial effect of the HRA is its "vertical" effect, whereby it must be used so as to ensure that existing law is interpreted and used by the Court in a manner consistent with the European Convention of Human Rights. "Horizontal effect" is actually allowing direct civil actions, in which damages can be awarded, for breach of any of the rights protected by the convention, such as the right to privacy or the right to free speech.
On balance, the judges were minded to take the more conservative route by ruling that it would not be bending the existing law of confidential information beyond all feasible limits to allow a right of damages for breach of confidence in this case. Accordingly it is not right to say that this is a landmark case in which a new right of privacy has been created, although the appeal judges came very close.
There were two other aspects in the judgement, however, which were of potential interest to marketers.
First, there was the question of whether the words of section 12(3) of the HRA could be used as a sort of trump card by publishers against claimants seeking quick injunctions stopping publication of material until trial. The sub-section provides that "publication of material will not be restrained before trial" unless the Court is satisfied that the applicant [was] likely to establish that publication should not be allowed".
Applying this test did not require, the Court of Appeal said, a thorough investigation of the legal merits afresh, having already applied the established law as to whether an interim injunction should be granted. It was more a question of striking a balance between the merits of the respective rights in play in a particular case, namely in this context the right to privacy and the right to free speech. Bearing in mind that no European Court of Human Rights cases have hitherto suggested that there should be a presumption in favour of free speech where other convention rights were in issue, the Courts should determine the gravity of the consequences if it should turn out at the end of the day that the decision as to whether to grant an injunction on an interim basis was wrong. This is not very different, if at all, from the existing law that is applied in deciding whether to grant an interim injunction. There is little comfort here, therefore, for marketers who may be trying to save advertising from being injuncted.
The second HRA point arose out of section 12(4). This provides that where proceedings relate to material claimed to be journalistic, literary or artistic, the Court must have regard, amongst other things, to any relevant privacy code. In this case the Court took due regard of clause 3 of the Press Complaints Commission Code of Practice dealing with privacy, concluding that any newspaper flouting clause 3 would lose its entitlement to a freedom of expression defence. Advertising material is likely to contain literary material (copy) and artistic material (photographs or graphic works) in the sense these phrases have in the Copyright Designs and Patents Act 1988. Could the British Code of Advertising and what it has to say about individuals' rights to privacy play the same role in say a case involving use of an individual in advertising as the PCC did here?
Why this matters:
It can only be a matter of time before the free speech/privacy battle reaches the Courts in an advertising context. One point often overlooked however is that there is no clear, incontrovertible authority in European Court of Human Rights decisions to the effect that commercial free speech should enjoy the same protection under Article 10 of the European Convention of Human Rights as non-commercial free speech. The Zeta-Jones Court of Appeal decision is not encouraging in this context. This is because it is quite clear from the judgements that one of the fundamental reasons why an injunction was refused was the "commercial" rather than "personal" nature of the confidentiality right in issue in this case, namely the right to keep an event confidential as otherwise it was not possible to justify the £1 million fee which the publishers of OK! had been prepared to pay for exclusive publicity rights. The most likely call must be at this stage that commercial speech will be held to be entitled to some level of protection under Article 10, but will be more vulnerable to other considerations such as those surrounding the right to privacy than non-commercial free speech.