House of Lords Decision in Douglas v Hello

As some may be aware, there has been a lot of press coverage about the House of Lords judgment on the Douglas v Hello case. This time, it is about the Hello and OK magazine. The judgment is fairly lengthy, but a good summary is provided by 5RB:

Facts: Michael Douglas and Catherine Zeta-Jones entered into an agreement with OK! magazine 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 OK! became aware that Hello! magazine planned to publish surreptitiously taken photographs of the wedding. OK! brought claims against Hello! for breach of confidence and causing loss by unlawful means (the Douglases also brought proceedings but these were no longer in issue).Lindsay J held Hello! liable for breach of confidence. The Court of Appeal reversed the judge’s decision on the ground that the obligation of confidence for the benefit of OK! attached only to the photographs which the Douglases authorized them to publish and not to any others. OK! appealed.

Issue (1) Whether Hello! were lable to OK! for breach of confidence;(2) Whether Hello! were liable to OK! for interfering with their business interests by unlawful means.

Held Allowing the appeal by a 3-2 majority:(1) Reversing the judgment of the Court of Appeal; OK! had paid £1m for the benefit of the obligation of confidence imposed upon all those present at the wedding in respect of any photographs of the wedding and were entitled to enforce that obligation. It had no claim to privacy nor could it make a claim parasitic on the Douglases rights. (Per Lord Nicholls and Lord Walker dissenting) The unapproved photographs contained nothing not in the approved photographs and therefore, once the latter had been published, there could be no breach of confidence. (Per Lord Walker dissenting) The law would not protect exclusivity in a ‘spectacle’.

(2) If it were necessary to consider this, Hello! had the necessary intention to cause loss but had not used unlawful means to interfere with the actions of the Douglases.

See also:

• Douglas & Ors v. Hello! Ltd & Ors [2007] UKHL 21 (02 May 2007)

No doubt, there will be some academic discussion about the law of torts in this area (particularly, the protection of an individual's image). Commitments permitting, one will have to start writing an article on this.