Reference:  QB 967;  2 WLR 992;  2 All ER 289;  EMLR 199;  FSR 732
Court: Court of Appeal
Judge: Brooke, Sedley & Keene LJ
Date of judgment: 21 Dec 2000
Summary: Breach of confidence - Injunction - Privacy - Human Rights Act 1998, s.12(3) - ECHR, Art 10 - ECHR, Art 8
David Sherborne (Respondent)
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 applied without notice for an interim injunction restraining the Defendants from publishing, on the ground of breach of confidence. Buckley J granted the injunction and it was continued by Hunt J at a hearing on notice. The Defendant appealed.
Whether the injunction should be discharged.
s.12(3) of the Human Rights Act required that, when considering whether to grant an injunction likely to affect freedom of expression, the court must consider Art 10(2) as well as Art 10(1), and all relevant Convention rights, such as Art 8, and must look at the merits of the case. Here, although the Claimants might establish at trial that the publication should not be allowed, the organised publicity surrounding the wedding tipped the balance in favour of allowing publication. Damages would be an adequate remedy and accordingly the balance of convenience favoured the Defendant and the injunction would be discharged.
s.12 Human Rights Act was introduced specifically to allay the media’s concerns about a privacy. It is ironic that the section proved to be the Trojan horse which allows the Court of Appeal to give effect to Article 8 privacy rights.