Douglas v Hello Ltd [2005] EWCA Civ 595 (18 May 2005)

Film stars Michael Douglas and Catherine Zeta-Jones sued Hello! magazine for publishing unauthorised photographs taken covertly at their wedding. They had sold exclusive rights to OK! magazine. The Court of Appeal upheld the Douglases' claim for breach of confidence protecting their privacy but dismissed OK!'s claim, finding no transferable commercial interest in confidential information.

Facts

Michael Douglas and Catherine Zeta-Jones, well-known film actors, married at the Plaza Hotel, New York in November 2000. They entered into an exclusive contract with OK! magazine for publication of authorised wedding photographs for £1 million. Despite extensive security measures, a paparazzo surreptitiously photographed the wedding. Hello! magazine purchased and published six unauthorised photographs, aware that OK! held exclusive rights and that the photographs were taken without authorisation.

Procedural History

The Douglases and OK! obtained an interlocutory injunction preventing publication, which was discharged by the Court of Appeal. Hello! subsequently published the photographs. At trial, Lindsay J found in favour of both the Douglases and OK! on grounds of breach of confidence, awarding the Douglases £14,600 and OK! over £1 million in damages. Hello! appealed.

Issues

The principal issues were: (1) Whether the Douglases were entitled to relief for invasion of privacy/breach of confidence despite having commercially exploited wedding photographs; (2) Whether OK! could claim the benefit of confidential information through their contract with the Douglases; (3) Whether Hello! were liable to OK! for the economic torts of unlawful interference with business or conspiracy to injure.

Judgment

The Court of Appeal, in a reserved judgment delivered by Lord Phillips MR, Clarke and Neuberger LJJ, dismissed Hello!’s appeal against the Douglases but allowed the appeal against OK!.

Privacy and Confidence – The Douglases

The court held that English law, informed by Articles 8 and 10 of the European Convention on Human Rights, protects private information through the law of confidence. Photographs are particularly intrusive means of invading privacy. The Douglases retained a residual right of privacy despite their contract with OK!. The unauthorised photographs invaded an area of privacy which the Douglases had chosen to retain, causing distress that warranted damages.

OK!’s Claim in Confidence

The court held that the OK! contract did not transfer to OK! any right to protect confidential information beyond the approved photographs. The contract granted OK! only an exclusive licence to publish approved photographs, not an assignment of rights in confidential information generally. Confidential information, as distinct from property, cannot be owned and transferred in the manner OK! contended.

Economic Torts

The court rejected OK!’s cross-appeal based on unlawful interference with business and conspiracy. While Hello!’s publication constituted unlawful means, the essential element of intention to injure was not established. The tort requires that harm to the claimant be an object of the defendant’s conduct, not merely a foreseeable consequence. The judge found Hello!’s purpose was to protect their own commercial interests rather than to injure OK!.

Implications

This decision significantly developed English privacy law by confirming that the law of confidence protects private information and that celebrities retain residual privacy rights even when commercially exploiting aspects of their private lives. It established that photographic information attracts particular protection given its intrusive nature. The judgment clarified that confidential information cannot be transferred like property and that the economic torts require proof of targeted intention to injure rather than mere foresight of harm. The court also observed that the interlocutory injunction should not have been discharged, indicating the importance of injunctive relief in privacy cases where damages may be inadequate.

Verdict: Hello!'s appeal against the judgment in favour of the Douglases based on privacy and commercial confidence was dismissed. Hello!'s appeal against the judgment in favour of OK! based on commercial confidence was allowed. OK!'s cross-appeal based on the economic torts was dismissed. The claimants' cross-appeal on damages based on a notional licence fee was dismissed.

Source: Douglas v Hello Ltd [2005] EWCA Civ 595 (18 May 2005)