Both sides claimed victory in the much-publicised case brought by Michael Douglas and Catherine Zeta Jones and the publishers of OK! magazine against Hello! magazine (and various associated parties) relating to the publication by Hello! of paparazzi photographs of the couple’s New York wedding. Was this simply a case of both parties seeking to gain the best publicity possible?
The case raised a number of interesting and topical issues regarding confidence, privacy and data protection. The claim for breach of confidence was the more straightforward, relying on existing common law principles. The Douglases had also claimed relief under a hitherto uncertain and highly debated general law of privacy. There was also a claim under the Data Protection Act 1998, based on the processing of personal data (the photographs) by Hello! There were also a number of ancillary claims for interference with business, abuse of process and conspiracy.
In a long decision, Mr Justice Lindsay held that there had been a breach of a commercial confidence to the detriment of all three claimants, despite Hello!’s arguments that the couple had forfeited any rights in confidence they might have had by contracting to sell authorised pictures to OK! He also decided there had been a breach of the Data Protection Act, although this would only entitle the claimants to nominal damages.
On the other hand, he declined to find any existing law of privacy, whether under the Human Rights Act or otherwise, which would protect the claimants in these circumstances over and above the protection offered by the law of confidence. However, he made clear that further developments in this area should be addressed by Parliament to avoid a slow and piecemeal development of the area by the Courts. The claimants also failed in their ancillary claims and in their claims for exemplary or aggravated damages.
The decision represents a substantial legal victory for the claimants, who were entirely successful in their principal claim and are entitled to damages (the amount of which will be decided at a further hearing) and obtained an undertaking that the defendants would not publish the photographs again. We understand that Hello! are contemplating appealing the decision, but this is unlikely to occur prior to the hearing on damages later this year.
