Douglas v Hello! Ltd (No.6)
Reference:  EWHC 2629 (Ch);  EMLR 13
Court: Chancery Division
Judge: Lindsay J
Date of judgment: 7 Nov 2003
Summary: Breach of confidence - Privacy - Data Protection Act 1998 - intellectual property - Quantum of damages - Distress - Wasted costs - Loss of revenue - Notional licence fee
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David Sherborne (Claimant)
Instructing Solicitors: Addleshaw Goddard for the Claimants; Charles Russell for the Defendant
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 first Defendant, was planning to publish surreptitiously taken photographs of the wedding. Although denied an injunction on appeal, the Claimants had won at trial on the grounds of breach of confidence and under the Data Protection Act 1998. This hearing was the assessment of damages.
What award of damages the Claimants were entitled to.
The Claimants would be awarded either distress, wasted costs and loss of revenue or a notional licence fee, and not both. It was presumed that they would opt for whichever gave them the higher award, which was the former, compensatory measure. On finding what would have occurred had the events complained of not occurred, Hello! was liable to pay OK! £1,033,156. The Douglases were awarded a total of £14,600 incorporating £3,750 each for distress, £50 each under the Data Protection Act and £7,000 for wasted costs.
The concept of “notional licence fee” will not always be relevant or helpful in more traditional “privacy” claims. In this case, the Judge found it unnecessary to decide whether a notional licence fee was in principle available as a remedy. Where the Claimant never wanted any of his/her private information published at all, it is hardly appropriate to use a notional licence fee. This concept, taken from intellectual property cases, is usually more relevant to commercial confidence claims. Where, however, the Defendant has paid the source for his/her betrayal (in the typical kiss ‘n’ tell story) the notional licence fee may lead to a Claimant having a substantial claim using this basis of assessment.