On 2 May 2007 the House of Lords delivered a judgment marking the end of the long-running battle between magazine rivals OK! and Hello and the start of greater protection for the celebrity exclusive.
Michael Douglas and his bride sold the exclusive coverage of their wedding in 2000 to OK! Magazine for £1 million. The Douglases were to arrange for official photographs to be taken and would then approve a number for release to OK! for exclusive publication. The contract prevented the Douglases from authorising publication by any third party of any photographs of the wedding and obliged the couple to implement stringent security measures to prevent anyone present – guest or staff – from taking pictures.
Somehow a paparazzo inveigled his way into the reception and covertly took a number of pictures, which were promptly bought and published by Hello! Magazine in a “spoiler” edition.
After a series of appeals Hello! succeeded in persuading the Court of Appeal that it was not liable to OK! for breach of confidence. As Lord Hoffmann summarised it in his lead judgment in the House of Lords “the obligation of confidence for the benefit of OK! attached only to the photographs which the Douglases authorised them to publish. [OK!] did not have the benefit of an obligation of confidence in respect of any other photographs.”
The House of Lords however overturned that decision and ruled in favour of OK!.
The House of Lords’ decision
Their Lordships were all prepared to accept (as both the lower courts had done) that OK! had the benefit of certain confidentiality rights in photographic coverage of the Douglases’ wedding. Where the differences lay were as to the scope of that confidentiality. The minority were persuaded by the Court of Appeal’s analysis that it attached only to the photographs that OK! was authorised to publish. The majority disagreed, finding that the duty of confidence owed to OK! extended to all photographs of the occasion, whether authorised or not.
The Court stated that publication of the authorised pictures did not extinguish OK!’s confidentiality rights in unpublished ones.
This judgment represents a victory for commerciality over the niceties of legal theory. It is to be welcomed for this reason. The majority of the House of Lords kept the intention behind the Douglases’ exclusive deal with OK! at the fore. The purpose of that arrangement was not merely that OK! would be the approved, official publisher of pictures of the happy occasion but, of equal importance, that OK! would be the only source of pictures of the event.
Hello!’s damages bill of over £1 million, plus legal costs likely to far exceed that, combined with the loss they made on their wedding edition are all likely to serve as a deterrent to any would-be exclusivity saboteur. The “spoiler” is dead – long live the celebrity exclusive!