Hello! wins ‘privacy’ appeal

OK! loses £1m damages award as CA rules on commercial privacy rights

The Court of Appeal has today handed down a landmark privacy judgment recognising for the first time that the courts have a duty to protect privacy interests.

In summary, the Court has held:

  • Following the von Hannover decision of the European Court of Human Rights, the Court has a duty to protect privacy interests.
  • OK! had no cause of action against Hello! for publishing unauthorised photographs of the wedding – reversing Lindsay J’s ruling on liability and leaving OK! to repay the £1m+ damages they were awarded at the trial.
  • OK!‘s appeal against Lindsay J’s dismissal of the causes of action based on economic torts was dismissed.
  • Hello!‘s appeal against the damages award to Catherine Zeta-Jones and Michael Douglas was dismissed. The two individuals did have enforceable privacy rights against Hello!.
  • The decision of the Court of Appeal in relation to the original injunction application was wrongly decided; an injunction should have been granted as damages would not have been an adequate remedy for Catherine Zeta-Jones and Michael Douglas

The last of these rulings – albeit obiter – will be of concern to the media as it will inevitably be relied upon as an indication that interim injunctions should more readily be granted in privacy cases.

In relation to image rights, the Court made two important findings:

  • “Where an individual (“the owner”) has at his disposal information which he has created or which is private or personal and to which he can properly deny access to third parties, and he reasonably intends to profit commercially by using or publishing that information, then a third party who is, or ought to be, aware of these matters and who has knowingly obtained information without authority, will be in breach of duty if he uses or publishes the information to the detriment of the owner” (§118)
  • “… confidential or private information, which is capable of commercial exploitation but which is only protected by the law of confidence, does not fall to be treated as property that can be owned and transferred.” (§119)

Arguments on costs, permission to appeal and other consequential orders will be heard by the Court at a later date. However, Hello!‘s victory against OK! is likely to leave its rival facing a substantial costs’ bill.

5RB‘s James Price QC was leading counsel for Hello! (instructed by M Law); 5RB‘s Desmond Browne QC and David Sherborne (instructed by Addleshaw Goddard) appeared for OK!, Catherine Zeta Jones and Michael Douglas.

Click here for the full judgment and 5RB case report.