Human Rights – intellectual property – Breach of confidence – Privacy – ECHR, Art 8 – Freedom of expression – ECHR, Art 10 – Data Protection Act 1998 – use of surrepitiously taken photographs
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. The Claimants brought a claim under 14 different heads, including breach of confidence (both with and without a privacy element), breach of the Data Protection Act 1998, and ‘pure’ breach of privacy.
Whether the Claimants’ various claims were made out.
Applying the three elements laid down in Coco v Clark [1969] RPC 41, the Claimants succeeded in their claim for breach of confidence. This claim adequately protected the Claimants’ Art 8 rights, so there was no need to address the question of any breach of privacy. There was also a breach of the Data Protection Act, as the Act applied to the publication of the photographs, the s.32 journalistic purposes exemption did not apply and the processing was not done “fairly and lawfully”. However, the damage to the Claimants was not by reason of a contravention of the Act and so damages under this head would be nominal.
Although Douglas v Hello! has done much to stimulate the debate about privacy law, Lindsay J’s judgment proceeds to grant the Claimants their remedy using the existing law of breach of confidence. The treatment of the Data Protection Act claim will discourage future Claimants from simply adding a claim under the Act as a make-weight.
