Full case report
Douglas v Hello! Ltd (No.8) (HL)
Reference  UKHL 21;  1 AC 1;  2 WLR 920;  4 AllER 545;  EMLR 325; (2007) BusLR 1600; (2007) IRLR 608; (2007) 30(6) IPD 30037; (2007) 19 EG 165(CS); The Times, 4 May 2007
Court House of Lords
Judge Lord Hoffmann, Lord Nicholls of Birkenhead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood
Date of Judgment 2 May 2007
Breach of confidence – Nature of confidential matter – Enforceability of obligation of confidence post-publication – Causing loss by unlawful means – Test of intention as an ingredient – Unlawful means
Michael Douglas and Catherine Zeta-Jones entered into an agreement with OK! magazine by which OK! were given exclusive rights to publish photographs of the Douglas-Zeta-Jones wedding. At the wedding and reception photography was prohibited; employees signed agreements not to take photographs and guests were searched for cameras. Shortly after the wedding OK! became aware that Hello! magazine planned to publish surreptitiously taken photographs of the wedding. OK! brought claims against Hello! for breach of confidence and causing loss by unlawful means (the Douglases also brought proceedings but these were no longer in issue).
Lindsay J held Hello! liable for breach of confidence. The Court of Appeal reversed the judge’s decision on the ground that the obligation of confidence for the benefit of OK! attached only to the photographs which the Douglases authorized them to publish and not to any others.
(1) Whether Hello! were liable to OK! for breach of confidence;
(2) Whether Hello! were liable to OK! for interfering with their business interests by unlawful means.
Allowing the appeal by a 3-2 majority:
(1) Reversing the judgment of the Court of Appeal; OK! had paid £1m for the benefit of the obligation of confidence imposed upon all those present at the wedding in respect of any photographs of the wedding and were entitled to enforce that obligation. It had no claim to privacy nor could it make a claim parasitic on the Douglases rights. (Per Lord Nicholls and Lord Walker dissenting) The unapproved photographs contained nothing not in the approved photographs and therefore, once the latter had been published, there could be no breach of confidence. (Per Lord Walker dissenting) The law would not protect exclusivity in a ‘spectacle’.
(2) If it were necessary to consider this, Hello! had the necessary intention to cause loss but had not used unlawful means to interfere with the actions of the Douglases.
This judgment, which also deals with two other appeals, is most significant for its welcome clarification of the scope and nature of the economic torts, most notably determining that there is no independent tort of “interference with contractual relations”.
In respect of OK!‘s confidence claim, the principal issue dividing the Committee was whether photographic information about the Douglases wedding could properly be the subject of a confidence, and, if it could, whether the obligation of confidence could be enforced after the approved photographs had been published. The majority, led by Lord Hoffman, held that such information could be the subject of a confidence if exclusivity could be maintained, and that the publication of one photograph did not destroy the obligation of confidence in respect of others of the same event.
S J Berwin LLP for <I>OK!</I>; M Law for <I>Hello!</I>
More from 5RB
“known for its indisputable quality in the areas of defamation, privacy, contempt and data protection.” Get the lowdown here.
New 3rd Edition of The Law of Privacy and the Media, published by OUP. Further details here.