The law of breach of confidence or misuse of private information has set the stage for some interesting cases over recent years. English courts have adjudicated disputes over publication of information about sex, drug addictions and, in this case, unauthorised photographs of newlyweds eating cake. OK!, so a bit of the glamour in the form of Catherine Zeta-Jones and Michael Douglas had disappeared stage right (apparently content with their £14,600), but with two of the hottest gossip magazines still in the ring and the future of “exclusives” hanging in the balance, interest levels in this long running battle remained high.

The Story So Far

OK! entered into a contract with Miss Zeta-Jones and Michael Douglas (at a cost of £1million) for the exclusive right to publish photographs of their wedding, at which all other photography was banned. The Douglases went to some lengths to enforce the ban at the New York Plaza venue. However, a photographer, Mr Thorpe, infiltrated the wedding, pretending he was either a waiter or a guest, and Hello! then bought his photographs for £125,000. Only a few hours after OK!’s publication (which had been brought forward once OK! discovered what Hello! had done), Hello! published the unauthorised photographs. Hello!’s sales figures were some £150,000 above average. OK! argued that Hello!’s actions constituted a breach of its equitable right to confidence in the pictures of the wedding or unlawful interference with its contractual or business relations.

The legal battles over these photographs have been fitting for the Hollywood royalty subjects of them, involving twists and turns that would not be out of place in a blockbuster movie. Before publication, OK! obtained an ex parte injunction against Hello!, which was subsequently lifted by the Court of Appeal, influenced partly by the damage in burying an entire issue of Hello!. It also thought the claimants had lessened their entitlement to privacy by allowing widespread publicity to be given to the wedding in OK!.

In the main proceedings, Lindsay J at first instance held Hello! liable for breach of confidence in respect of the photographic images of the wedding, commenting that the very fact that Hello! and OK! had competed to pay the Douglases £1million for exclusivity pointed to “the commercial confidentiality of coverage of the event.” He also found that Hello!’s consciences were tainted as, although the photographs were not commissioned in advance, they knew that OK! had an exclusive contract and turned a blind eye to the circumstances in which the photographs were taken. Hello! was liable to OK! for the loss caused by the publication (later assessed at £1,033,156).

That ruling was then reversed by the Court of Appeal, which found that the obligation of confidence of which OK! had the benefit attached only to the photographs that the Douglases had authorised OK! to publish. They did not have the benefit of confidentiality in respect of other photographs of the wedding. House of Lords

By a majority of 3:2, the House of Lords reinstated the decision of Lindsay J, influenced like him by the fact that OK! had paid £1m for the benefit of the obligation of confidence imposed on all those attending, in respect of photographs of the wedding. They held that photographic images of the wedding had a commercial value over which the Douglases had sufficient control to enable them to impose an obligation of confidence. OK! had bought the exclusive right to publish the photographs and the benefit of the duty of confidentiality imposed on those present at the wedding. OK! had the right to enforce that duty against Hello!.

Lord Hoffmann (one of the majority) found that the Court of Appeal decision made no commercial sense, as the essential purpose of the ban on any unauthorised photography was to impose an obligation of confidence over any pictures of the wedding in order to protect OK!’s commercial interests. He said, “Some may view with distaste a world in which information about the events of a wedding… should be sold in the market in the same way as information about how to make a better mousetrap. But being a celebrity or publishing a celebrity magazine are lawful trades and I see no reason why they should be outlawed from such protection as the law of confidence may offer.”

The lawyers for Hello! had submitted that, under the law of New York, Mr. Thorpe had no obligation to keep the information confidential. The Lords did not explore the veracity of that statement, holding that the question of whether an obligation of confidence, even if imposed in New York, can entitle the beneficiary to restrain publication in England is a matter of English law. The authorities have shown English courts being asked (and, in recent cases, being inclined) to protect two distinct interests through the law of confidentiality: privacy and secret (confidential) information. The House of Lords has confirmed in Wainwright v. Home Office (2004) 2 AC 406 that there is as yet no stand-alone common law tort of privacy, but the law of confidentiality is being developed so as to protect private information; so privacy can be invaded through further publication of information which has already been released to the public. Breach of confidence claims (as in this case) usually concern commercial secrets. The Lords commented that the case was no longer about privacy, as OK! could have no claim that was parasitic upon the Douglases’ right to privacy. OK!’s claim was to protect commercially confidential information, and nothing more.

Against that background, it is perhaps easy to see why Lord Nicholls and Lord Walker (dissenting) rejected OK!’s claim to confidentiality on the basis that once the approved photographs were published, the publication of the unapproved photographs (which contained nothing not included in the approved photographs) could not be a breach of confidence. That was so, whether the commercial secret was defined as the information contained in the photographs, or the information about the entire wedding as an event.

The dissenting judges referred to previous cases in which claimants had unsuccessfully tried to stop publication of unauthorised photographs on the basis of some kind of intellectual property right in the event. They made clear that, in the same way, they would be unwilling to afford the protection of exclusivity in coverage of an event through the law of confidence. Lord Walker stated that “the confidentiality of any information must depend on its nature, not on its market value.”

In view of the majority conclusion that OK! was entitled to sue for breach of confidence, it was not necessary to decide OK!’s claim against Hello! for unlawful interference on the basis that the obligation of confidence was owed solely to the Douglases. Nevertheless, the Lords made clear that it would have failed on the basis that there had been no interference with the freedom of the Douglases to deal with or perform their contractual obligations to OK!.

The Upshot

Good news for celebrities who can continue to generate cash through the sale to magazines of an “exclusive” right to cover their special occasions. Bad news for magazines who lose out on such deals, as they will risk expensive claims if they choose to publish “spoilers.”