Hollywood stars succeed in their action against Hello! Magazine
Catherine Zeta-Jones and Michael Douglas scored a victory over the unauthorised use of photographs of their wedding by "Hello! Magazine" at the High Court in London on 11 April 2003. In 2002, the Douglases at first succeeded and then failed on appeal to obtain an interim injunction to stop the publication of the edition of Hello! with the photographs pending a full hearing. The victory now scored at the full trial means that they will be awarded damages that will be assessed in due course.
On the 18 November 2002 Catherine Zeta-Jones and Michael Douglas held their wedding at the Plaza Hotel in New York. After a bidding war between the publishers for “OK Magazine” and “Hello! Magazine” the Douglases had decided to accept an offer to provide the exclusive rights for a selection of their wedding photographs to be published in OK. The reason that they took this decision was, they said, to prevent a media circus at the wedding. They hoped that by providing one set of approved photographs to one magazine, the rest of the media would leave them alone.
The wedding was shrouded in secrecy and tightly controlled. Under the agreement that the Douglases had reached with OK they had to do their best to ensure that no other person could get in and take photographs. They had arranged for security personnel at the wedding to enforce this, the venue for the wedding was kept under wraps until the last possible moment and all the contractors were subject to conditions of confidence. Despite all of this, someone managed to get in to the wedding and take photographs that ended up in the hands of OK’s rival, Hello! which it then published in the UK. The Douglases, Catherine Zeta-Jones in particular, were shocked by the quality and selection of the photographs used by Hello! and the fact that they had been published with out their permission. OK were of course indignant that they had their exclusive scuppered by their rival. The Douglases and OK sought redress this through the Courts in the UK.
In their legal action they claimed, amongst several causes of action, that the publication of the photographs was a breach of confidence and\\or a breach of their privacy. They also had a number of other claims that included allegations of a breach of the Data Protection Act and interference with contractual relations. A person can establish a breach of confidence if they can show that: (1) certain information is confidential or that it has the quality of confidence about it, (2) that it has been imparted in circumstances that import and obligation of confidence and that, (3) there is unauthorised use of that information to the detriment of the party that communicates it.
However, it was the addition of the claim for a breach of privacy that, for lawyers, raised a great deal of interest. Up until fairly recently it was clear that there was no right of privacy under English law. The passing of the Human Rights Act (“HRA”) in 1998, which incorporates the European Convention on Human Rights (“ECHR”) into English law, was thought to change this. The ECHR contains Article 8, or the right to a “private family life”, and the HRA operates in such a way that forces certain public authorities (including Courts) to respect the ECHR when they reach their decisions. This is called the HRA's vertical effect, between the state and the individual.
However, it was also thought by some legal scholars, that the effect of the HRA was to give one individual an enforceable human right against another individual in this case the Douglases against Hello! The legal theory being that as the Court could not act in a way that was inconsistent with the ECHR, it would have to respect an individual’s ECHR rights, even in an action that did not involve the state as a party. So it was thought the Douglases could sue for a breach of their privacy by Hello! and a Court would have to respect that right.
The action succeeded on the grounds of a breach of confidence. After a careful examination of the facts leading up to the publication of the photographs, the Judge took the view that the photographs of the wedding were capable of having the necessary quality of confidence. The Judge found that although everyone new what the Douglases looked like, the fact of how they looked on the exceptional occasion of their wedding day, was not widely known. One factor that appeared to influence the Judge that this was information of commercial importance was the fact that each of the two magazines involved had been prepared to pay up to £1,000,000 for the exclusive rights to the photographs. Therefore, the first limb was satisfied.
The second factor to consider was whether this information, i.e. how the Douglases appeared on their wedding day, was imparted in circumstances that imported an obligation of confidence. The elaborate arrangements that the Douglases had gone to, were sufficient in the view of the Judge to import an obligation of confidence to everyone at the wedding. The next question was how did this obligation touch upon a third party in the position of Hello! who were not at the wedding?
The test of whether the information was imparted in confidence includes an element of objective assessment. If a reasonable man standing in shoes of the recipient of the information realised that the information was being given to them in confidence, then this is sufficient to impose an obligation on them. The Judge also held that this would include a situation where a person was "deliberately blind" to where the information had come from.
As both magazines had bid for the exclusive rights and Hello! had lost, the Judge took the view that the owners of Hello! would be well aware of the restrictions that the wedding and any photographs would be subject to. Also once Hello! was in receipt of the photographs it would have been aware from their poor quality that they had been taken surreptitiously. Although the evidence from Hello! was that they had not asked how they pictures had been obtained, this was not sufficient to absolve them of the obligation of confidence. The Judge also held that there was damage to the Douglases and OK from, for instance, the loss of syndication rights.
Had the Douglases not been able to fix Hello! with this obligation of confidence, they may well have had to try and rely upon their right to privacy under the HRA. In the event the Judge decided that it was not up to him to define a wide ranging law of privacy, this was a matter for Parliament.
This case was not quite the watershed that legal scholars thought that it may be. It appears that we do not have a general right of privacy in UK law. For the moment, the Douglas' succeeded on a more traditional legal ground of a breach of confidence.