House of Lords
Published May 3, 2007
Douglas and Another v Hello! Ltd and Others
Before Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Walker of
Gestingthorpe, Baroness Hale of Richmond and Lord Brown of
Eaton-under-Heywood
Speeches May 2, 2007
Photographic images of the wedding of two celebrities had a commercial value
over which the celebrities had sufficient control to enable them to impose
an obligation of confidence. A magazine publisher who had bought the
exclusive right to publish the photographs and had the benefit of the duty
of confidentiality imposed by the celebrities, had the right to enforce that
duty against a rival magazine which published unauthorised photographs of
the wedding.
The House of Lords, Lord Nicholls and Lord Walker dissenting, so held allowing
the appeal of Northern and Shell plc, publishers of OK! magazine, from the
Court of Appeal (Lord Phillips of Worth Matravers, Master of the Rolls, Lord
Justice Clarke and Lord Justice Neuberger) ( The Times May 24, 2005;
[2006] QB 125) who allowed an appeal by Hello! Ltd from Mr Justice Lindsey ( The
Times April 21, 2003) and ([2003] EWHC 2629 (Ch)) awarding the
publishers of OK! damages against Hello! Ltd of £1,026,706 for loss
of profit from the exploitation of unauthorised photographs of the wedding
in New York on November 18, 2000 of Mr Michael Douglas and Miss Catherine
Zeta-Jones.
Mr Richard Millett, QC, Mr Richard Slowe, solicitor, and Mr Paul
Stanley for Northern and Shell; Mr James Price, QC and Mr
Giles Fernando for Hello! Ltd.
LORD HOFFMANN said that OK! contracted with Mr Douglas and Miss
Zeta-Jones for the exclusive right to publish photographs of their wedding
at which all other photography would be forbidden.
The Douglases agreed to engage a photographer and to supply OK! with
pictures they had chosen. They also agreed to use their best efforts to
ensure that no one else would take any photographs and they went to some
lengths to comply with that obligation.
On November 24, 2000, the rival magazine, Hello! published photographs
which it knew to have been surreptitiously taken by Mr Rupert Thorpe, an
unauthorised photographer pretending to be a waiter or guest.
A few hours earlier on the same day OK! published its own photographs,
having brought forward its date of publication on account of what it knew to
be imminent publication by Hello! On the same day some of the
unauthorised photographs were, without objection by Hello!, published
in national daily newspapers.
OK! sued Hello! for breach of confidence and for the tort of
causing loss by unlawful means.
The judge held Hello! liable and applied the three well known criteria
for liability for breach of confidence: (i) the information itself must have
the necessary quality of confidence about it; (ii) the information must have
been imparted in circumstances importing an obligation of confidence; and
(iii) there must be an unauthorised use of that information to the detriment
of the party communicating it: see Coco v A. N. Clark (Engineers) Ltd
([1969] RPC 41, 47).
The judge identified the information as being photographic images of the
wedding, not the information about the wedding generally; anyone was free to
communicate the information that the Douglases had been married.
As to the first criterion, photographs of the wedding were confidential
information in that sense that none was publicly available. As to the second
the Douglases had made it clear that anyone admitted to the wedding was not
to make or communicate photographic images.
Furthermore, everyone knew that the obligation of confidence was imposed for
the benefit of OK! as well as the Douglases. The obligation of
confidence was therefore binding upon Hello! and the third criterion
of use to the detriment of OK! was plainly satisfied.
In his Lordship’s opinion the judge was right. The point of which one should
never lose sight was that OK! had paid £1 million for the benefit of
the obligation of confidence imposed upon all those present at the wedding
in respect of any photographs of the wedding.
Unless there was some conceptual or policy reason why they should not have the
benefit of that obligation, there was no reason why they were not entitled
to enforce it.
There was no conceptual problem about the fact that the obligation of
confidence was imposed only in respect of a particular form of information,
namely, photographic images.
If OK! was willing to pay for the right to be the only source of that
particular form of information and did not mind that others were free to
communicate other forms of information about the wedding, then the Douglases
should be able to impose a suitably limited obligation of confidence.
His Lordship said that Lord Nicholls and Lord Walker had been troubled by the
fact that the information in the photographic images was not intended to be
kept secret but to be published to the world by OK! and was so
published at much the same time as the unauthorised photographs in Hello!
His Lordship could see no reason why there should not be an obligation of
confidence for the purpose of enabling someone to be the only source of
publication if that was something worth paying for.
Why should a newspaper not be entitled to impose confidentiality on its
journalists, subeditors and others to whom it communicated information about
a scoop which it intended to publish the next day?
His Lordship said that Lord Nicholls was also of the opinion that once the
approved photographs were published, the publication of the unauthorised
ones was not a breach of confidence. His Lordship could not understand that.
Mr Thorpe was subject to an obligation of confidence in respect of the
pictures he took. Hello!, by reason of the circumstances in which
they acquired the pictures was subject to the same obligation.
It was certainly the case that once information got into the public domain it
could no longer be the subject of confidence. Whatever the circumstances in
which it was obtained, there was no point in the law providing protection.
Whether that was the case depended on the nature of the information. Whether
there was still a point in enforcing the obligation of confidence depended
on the facts.
If the purpose of publishing the pictures was simply to convey the information
that the Douglases got married, the bride wore a wedding dress and so on,
then the publication of any photographs would have put that information in
the public domain. So would a description of the event.
However, the point of the transaction was that each picture would be treated
as a separate piece of information which OK! would have the exclusive
right to publish.
The pictures published by OK! were put into the public domain and it
would have had to rely on the law of copyright, not the law of confidence to
prevent their reproduction. But no other pictures were in the public domain
and they did not enter the public domain merely because they resembled other
pictures which had.
Why was Hello! willing to pay so much money for information which was
already in the public domain? Why did the judge find that the publication of
information which did not, in Lord Nicholls’ words, “call for legal
protection” had caused substantial financial loss to OK!? That
seemed a point on which the story was in danger of losing touch with
reality.
Was there any reason of public policy why the law of confidence should not
protect information of this form and subject-matter? There was, in his
Lordship’s opinion, no question of creating an “image right” or any other
unorthodox form of intellectual property.
The information was capable of being protected not because it concerned the
Douglases’ image any more than because it concerned their private life, but
simply because it was information of commercial value over which the
Douglases had sufficient control to enable them to impose an obligation of
confidence.
Some might 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 were lawful trades and there was no reason why they
should be outlawed from such protection as the law of confidence might
offer.
In view of the conclusion that OK! was entitled to sue for breach of an
obligation of confidentiality to itself, it was artificial to discuss the
alternative claim of causing loss by unlawful means on the footing that the
obligation was owed solely to the Douglases.
Neither Mr Thorpe nor Hello! did anything to interfere with the liberty
of the Douglases to deal with OK! or to perform their obligations
under their contract. All they did was to make OK!’s contractual
rights less profitable than they would otherwise have been.
On the other hand, his Lordship made it clear that in his opinion such a claim
should not have failed for the reasons given by the judge and the Court of
Appeal, namely, that Hello! did not intend to cause loss to OK!
Their conclusion was based on the evidence of the controlling shareholder of Hello!’s
Spanish holding company who made the decision to publish. His position was
that he wished to defend his publication against the damage it might suffer
on account of having lost the exclusive and that there was no intention to
injure OK!
But that was precisely the position of every competitor who stepped over the
line and used unlawful means. The injury he inflicted on OK! in order
to keep up his sales was simply the other side of the same coin. The injury
to OK! was the means of attaining Hello!’s desired end and not
merely a foreseeable consequence of having done so.
His Lordship would therefore have held that Hello! had the necessary
intention to cause loss but not that they interfered by unlawful means with
the actions of the Douglases.
Lord Nicholls and Lord Walker delivered speeches dismissing the appeal. Lady
Hale and Lord Brown delivered speeches agreeing with Lord Hoffmann.
Solicitors: S. J. Berwin; M. Law.
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