Just over three years after a certain confidential wedding breakfast in the Plaza Hotel, New York, the litigation between Hello! and OK! magazines, as well as the happy couple, is finally drawing to a close. We break down and analyse the recent seven figure damages award.
Who: Catherine Zeta-Jones, Michael Douglas, the publishers of OK! magazine and Hello! Magazine
Where: Chancery Division of the High Court of Justice
When: November 2003
In April 2003 the High Court held that Hello!'s publication of secretly taken photographs of the Zeta-Jones/Douglas wedding was wrongful. This was on the basis of misuse of confidential information. The issue of how much Hello! would have to pay in damages was left to a separate hearing. Lindsay J pronounced judgment on these aspects on 7 November 2003.
Broadly, there were three categories of damages claimed. The Douglas family claimed "non commercial" damages for the distress they had suffered as a result of the publication of the secretly obtained photographs. These included damages for breach of the Data Protection Act. Secondly they claimed in respect of wasted expenditure. This arose out of their having to bring forward preparation, approval and provision of the authorised photographs so as to enable them to appear in OK! as part of OK's attempts to mitigate the damage caused by Hello!'s "spoiler" publication. Thirdly there were "commercial" damages claimed by the Douglases and the publishers of OK! (Northern and Shell Plc) equivalent to alleged losses arising from Hello!'s misuse of the clandestine photographs.
On the commercial damages, detailed evidence was put before the court on the question of lost sales and profits. This included evidence from former Sun editor Kelvin MacKenzie. Kelvin said that in his view Hello!'s spoiler would have had a "devastating effect" on sales of the equivalent issues of OK!. The Judge found Kelvin to be a "robust and straightforward" witness and was clearly much swayed by his view. All in all, Lindsey J found that OK! should recover £1,033,156 loss of profit from Hello!
So far as the "non commercial" damages were concerned, the figures were much more modest. The gross additional expenses claimed by the Douglases were £13,000 but the Judge held that the particulars of this claim "failed fully to justify that figure". He awarded only £7,000.
As for the damages for distress, the Judge agreed with Hello!'s counsel that the Douglases should not be able to recover in respect of distress occasioned by knowledge that there had been an intruder at the wedding. Their only relevant recovery in this scenario was in respect of distress occasioned by the publication of the unauthorised photographs. Only this category of damages could be laid at Hello!'s door. On this basis Lindsey J awarded Mr and Mrs Douglas £3,750 each. Under the Data Protection Act, he awarded them an additional £50 each, having already determined in his April 2003 judgment that the damages here could only be nominal.
Why this matters:
This is still not the end of the saga. There still has to be a separate hearing to deal with the question of legal costs, which will no doubt run into seven figures taking into account the costs incurred in the earlier interim injunction applications.
The damages in respect of lost sales were clearly substantial, but as for the remainder, there are no legal revolutions lurking here. In his April 2003 judgment, Lindsey J continued the established judicial line in cases which, since the arrival of the Human Rights Act, have teetered on the brink of creating a free standing "right of privacy," for a breach of which damages can be awarded. The line remains that there is no such right and, consistent with cases such as those of Naomi Campbell and Mirror Group Newspapers, the courts are also not going to take the bait offered to them by the Data Protection Act by awarding substantial damages for misuse of personal data by way of publication of photographs of individuals without their consent.
So far, therefore, celebrities are not guaranteed pots of gold by way of compensation for "invasion of privacy" if their images are used without their permission by the media. In different scenarios, however, for instance that of Eddie Irvine and his case against Talkback Radio for passing off, not insubstantial amounts have been awarded, so all those contemplating the use of images of individuals in commercial communications should continue to be wary.