Douglas v Hello! Ltd (No.2)
Reference:  EWCA Civ 139;  EMLR 585
Court: Court of Appeal
Judge: Phillips MR, Rix & Scott Baker LJJ
Date of judgment: 12 Feb 2003
Summary: Breach of confidence - Privacy - ECHR, Art 10 - ECHR, Art 8 - Service out of jurisdiction - Data Protection Act 1998 - Interference with rights and business - Unlawful means conspiracy - photographs
David Sherborne (Claimant)
Instructing Solicitors: Theodore Goddard for the Claimants; Charles Russell for the Defendants
Michael Douglas and Catherine Zeta-Jones, the first and second Claimants, entered into an agreement with OK! magazine, the third Claimants, 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 the Claimants became aware that Hello! magazine, the Defendant, was planning to publish surreptitiously taken photographs of the wedding. It was not known who had taken the photographs. The Claimants case was that Mr Philip Ramey, a US photographer, had supplied some or all of the photographs. They obtained permission to serve him out of the jurisdiction. Laddie J granted his application to set aside service. The Claimants appealed.
Whether the Claimants had any reasonable prospect of succeeding against Ramey such that they could serve on him out of the jurisdiction.
There was a good arguable case that Ramey was a joint tortfeasor. If he took or arranged the taking of the photographs, it was arguable that he was jointly liable in the same way as an author is jointly liable in libel. There were also good arguable claims in respect of breach of statutory duty under the Data Protection Act, interference with rights and business and unlawful means conspiracy. Appeal allowed.
To understand properly the rules regarding jurisdiction and liability for tortious acts, it is necessary to concentrate on where the tort was committed. Where publication is involved as part of the tort, this is the place where the publication took place. Here, the photographer was arguably jointly responsible for the breach of privacy/confidence which took place when the photographs were published in Hello! As such, the Court should allow service of the Claim Form outside the jurisdiction in order to join him to the claim.