Hello to a right to privacy

30 June 2005

Tomos Shillingford

The high profile tussle between rival magazines OK! and Hello! has stayed in keeping with its celebrity billing, displaying all the twists and turns of a soap opera. OK! won the first round, securing an interim injunction against Hello! to prevent it from publishing unauthorised photographs of Michael Douglas and Catherine Zeta-Jones at their wedding (an event to which OK! had ‘bought the exclusive rights’). Hello! then succeeded in having the injunction lifted and went to print with its ‘spoiler’ photographs (Douglas v Hello! [2001] QB 967). However, at first instance the High Court ordered Hello! to pay £1.03m in damages to OK! ([2003] 3 All ER 996). The Court of Appeal has now reversed that decision ([2003] EWCA Civ 595).

Media interest has been fuelled by the involvement of the Douglases. However, the case is important in itself for its groundbreaking consideration of the nascent “law of privacy” in the England and Wales. For many years the English Courts has maintained that there is no general right to privacy. The Master of the Rolls, Lord Phillips giving judgment on behalf of the Court of Appeal was at pains to emphasise the speech of Lord Nicholls in Campbell v MGN ([2004] 2 WLR 1232) in which he denied the development of “some high level principle of privacy”. However, the judgment of the Court of Appeal repeatedly speaks of a “right to privacy” and, though the right has yet to be exercised by a ‘non-celebrity’, it does seem to have wide enough application to cover the general populace.

The English Courts have been reluctant to introduce a privacy right, having considered that it was for Parliament to legislate for such a change in the law. However, the UK government made it clear that it was not going to introduce such legislation. The English Courts have thus been forced to act in order to comply with the positive obligations under the Convention on Human Rights, which require the protection of individual privacy. In May 2004 the House of Lords recognised that the relevant national law must be interpreted “to ensure that the State complies with its positive obligation under the Convention to protect private life and the right to control and the use of one’s own image” (Campbell v MGN). In June 2004, the European Court of Human Rights affirmed essentially this point when Princess Caroline of Monaco was successful in her claim that German law had to provide protection for her private life (Von Hannover v Germany (24 June 2004)) on the basis of her Convention rights.

Lord Nicholls in Campbellv MGN stated that the action for breach of confidence, having been extended to now cover what we might consider to be privacy rights, was “better encapsulated now as misuse of private information”. In Douglasv Hello!, Lord Phillips made his unease about the extension of the law of confidence very evident, stating:

“We cannot pretend that we find it satisfactory to be required to shoe-horn within the cause of action of breach of confidence claims for publication of unauthorised photographs of a private occasion.”

However, the Court of Appeal reluctantly followed the House of Lords decision in Campbellv MGN and found that the invasion of the Douglases’ privacy constituted an actionable breach of confidence. Lord Phillips expressly characterised the Douglases’ claim as being one of “invasion of privacy”. He ruled:

“Hello! deliberately obtained photographs that they knew were unauthorised and published them to the detriment of the Douglases. This renders them liable for breach of confidence under English law.”

The Court of Appeal placed particular emphasis on the fact that the case concerned the publication of unauthorised photographs, which the Court obviously considered to have a special potential to constitute an invasion of privacy. Beyond this, the scope of the ‘right to privacy’ is of rather uncertain scope. The Court stated:

“What is the nature of ‘private information?’ It seems to us that it must include information that is personal to the person who possesses it and that he does not intend shall be imparted to the general public.”

On this formulation, the new right will not only impact the activities of the paparazzi; gossip columnists should also view their activities with a little more circumspection.

However, Hello! have grabbed a victory out of the jaws of defeat. At first instance Lindsay J found that the commercial confidentiality in the appearance of the wedding was in some way shared or transferred to OK! by means of the exclusive publishing contract that they had made with the Douglases. The Court of Appeal disagreed, determining that the ‘exclusive rights’ that OK! had bought for £1m comprised the exclusive licence to exploit the authorised photographs that the Douglases had taken at their wedding. Lord Phillips concluded:

“The licence did not carry with it any right to claim, through assignment or otherwise, the benefit of any other confidential information vested in the Douglases.”

Indeed, given that the Court expressly stated that the ‘privacy right’ was not a right in property, it could not have been licenced or assigned to a third party. The nature of the right appears to be personal and therefore non-transferable. In any event, and as pointed out by Lord Phillips, a licence passes no proprietary interest; it only makes an otherwise unlawful activity lawful. Accordingly, the licence granted to OK! did “not carry with it the right to sue a third party for a right vested in the Douglases”.

Where does this leave publishers who wish to purchase exclusive rights to celebrity events? Spoilers are not uncommon practice in the magazine world. It seems that it is not possible for publishers to contract with celebrities so as to acquire actionable rights in their privacy which will enable them to directly counter a spoiler. A possibility would be for such contracts to be conditional on exclusivity. Any damage caused by a spoiler would then accrue to the party that holds the rights. This obviously might not be too enticing for the celebrities, who would then be faced with costly litigation in the event that anything goes wrong.

The Court of Appeal considered that the interim injunction against Hello! should have been upheld by the earlier formulation of the same Court on the basis (inter alia) that damages would not have been an adequate remedy for the Douglases. This may provide some protection against the spoiler for the future. However, this would again require the celebrity to actively defend their rights.

It is interesting to note that the Court of Appeal made the distinction between disclosures which should be allowed in the public interest and those that would be merely a matter of public curiosity. The Court noted that the Douglases intended to publish a significant number of photographs of their wedding, possibly contemplating that the publication of the authorised photographs would be sufficient to fulfil any public interest in the wedding. However, the unauthorised photographs might have revealed information which could not have been derived from the authorised ones and, depending on what the photographs conveyed to the viewer, it might have been possible for there to have been some public interest in the publishing of the unauthorised photographs. In Campbellv MGN it was conceded that Naomi Campbell’s past comments as to her avoidance of illegal drugs created some public interest in the information that she had been attending a drug rehabilitation clinic. It is probable that this line of argument will resurface in the future.

The Court of Appeal also considered the application of the economic torts to the scenario and spent some hundred paragraphs of their judgment considering the level of intent required in what the Court termed “unlawful interference with economic and other interests”. The Court determined that it would have been necessary for Hello! to have intended to harm the business of OK! by running the ‘spoiler’ photographs and that the actions would have had to have been targeted towards or aimed at them. That was not consistent with the finding of fact of Lindsay J at first instance that Hello!’s primary intention was that of damage limitation, having lost the chance of securing the exclusive. This was found not to constitute sufficient intent, despite it being reasonably foreseeable that the publication of the unauthorised photographs would cause damage to OK!. The difficulty with proving this level of intent will cause the economic torts to remain of little use in this sphere.

The new ‘right of privacy’ will no doubt continue to be an area of development in the Courts of England and Wales. In an era in which the cult of celebrity is powerful and the public’s thirst for celebrity gossip is unassuageable there will no doubt be many more stars gracing the steps of the Royal Courts of Justice in defence of their privacy.

First published in the June 2005 edition of WIPR.