Douglas v Hello! Ltd (No 8) (CA)

Reference: [2005] EWCA Civ 595; [2006] QB 125; [2005] 3 WLR 881; [2005] EMLR 609; The Times 24 May 2005; The Times 26 May 2005

Court: Court of Appeal

Judge: Lord Phillips MR, Clarke & Neuberger LJJ

Date of judgment: 18 May 2005

Summary: Privacy - Confidence - Transferability of rights of privacy/ confidence - Economic torts - Test of intention as an ingredient of economic torts - Test of causation of damage - Interim injunctions - Whether damages adequate remedy

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Appearances: Desmond Browne QC - Leading Counsel (Claimant)  James Price QC - Leading Counsel (Defendant)  David Sherborne (Claimant) 

Instructing Solicitors: Addleshaw Goddard for the Claimants; M Law for the Hello! Defendants

Facts

The Douglases asserted both privacy rights and a right of commercial confidence in photographic images of their wedding. OK! asserted a right of commercial confidence derived from their exclusive publication contract with the Douglases, or alternatively a claim based on conspiracy or unlawful interference with their business by publication in Hello! of rival, unauthorised photographs of the wedding.

Issue

(1) Whether privacy rights survive commercial sale. (2) Whether a privacy right can be exploited by its subject as a commercial confidence. (3) Whether such rights are transferred on sale of exclusive publication rights to a commercial publisher. (4) The effect on the rights of the official pictures being placed in the public domain. (5) The test of intention for economic torts. (6) Whether Hello! were responsible for republication of the unauthorised images, without OK!‘s consent. (7) Whether the Douglases should have been awarded damages on a notional licence fee basis.

Held

(1) Privacy rights in photographic images of a private occasion can survive commercial sale of controlled and authorised photographs.
(2) Privacy rights are capable of exploitation by the subject as a commercial confidence.
(3) Whether commercial confidence rights are transferred to a publication on sale, so as to enable the publisher to sue, depends on the nature and terms of the contract. In this case, no such right was acquired by OK!
(4) Hello! jumped the gun by publishing unauthorised pictures. The authorised images were not truly in the public domain when they published.
(5) Economic torts require that the conduct which causes the harm be aimed and directed at the Claimant, and the purpose or object of the conduct must be to cause the Claimant economic loss. (6) Hello! would, had liability been established, have been responsible for republication (7) Notional licence fee was not appropriate.

Comment

The overall result is that the Douglases retained the damages of £14,600 awarded to them by Lindsay J, while OK!‘s claim for damages of over £1 million was dismissed. The case stands as a landmark decision on privacy rights under English law. It recognises for the first time that, following the <A
href=”https://www.5rb.com/5rb/casereports/detail_redirect.asp?case=267″ target=_parent>von Hannover decision the courts have a duty to recognise and protect privacy rights. Surprisingly, the Court ended its judgment with a strong obiter section which held that the original Court of Appeal <A
href=”https://www.5rb.com/5rb/casereports/detail_redirect.asp?case=11″ target=_parent>decision lifting an interim injunction was wrongly decided.