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Publication of unauthorised photographs of the DOUGLASES’ wedding , Douglas and others v Hello! Ltd and others [2005] EWCA Civ 595
The publication by a magazine of unauthorised photographs of Michael DOUGLAS and Catherine ZETA-JONES wedding infringed the law of confidence. The celebrity couple were entitled to damages for invasion of privacy and damage to their commercial interest in the information about their wedding against the infringing publishers, but the law of confidence did not extend to the publishers who had paid for the exclusive right to publish authorised photographs of the wedding. The publishers' claim based on economic torts was similarly not made out.

The Court of Appeal so held when dismissing the appeal of the first defendant, Hello! Ltd, against the judgments of Lindsay J on liability on 11 April 2003 and on damages on 7 November 2003 in favour of the first and second claimants, Michael Douglas and Catherine Zeta-Jones, but allowing the appeal of Hello! Ltd against the judgment in favour of the third claimant, Northern & Shell plc, the publishers of OK! magazine. The third claimant's cross-appeal on economic torts and the Douglases' cross-appeal on damages were dismissed.

LORD PHILLIPS MR, giving the judgment of the court, said that the only issue on liability in relation to the Douglases was whether the photographs published by Hello! infringed rights of confidence or privacy enjoyed by the Douglases. […]

The Douglases' claim for invasion of their privacy fell to be determined according to the English law of confidence, as extended to cover private and personal information. The information had to be of a confidential nature as opposed to being public property and public knowledge. In general, once information was in the public domain it would no longer be confidential. The same could generally be true of private information of a personal nature, but not necessarily true of photographs. The objection to the publication of unauthorised wedding photographs was not simply that the images conveyed secret information or impressions that were unflattering. It was that they disclosed information that was private. The intrusion into the private domain was of itself objectionable. The Douglases were entitled to complain about the unauthorised photographs as infringing their privacy on the ground that they detracted from the favourable picture presented by the authorised photographs and caused consequent distress. The court upheld the award of damages.

The other head of damages they were awarded asserted that the Douglases had a commercial interest in making public information about their wedding, which they were entitled to protect. The court saw no reason in principle why equity should not protect the opportunity to profit from confidential information about oneself in the same circumstances that it protected the opportunity to profit from confidential information in the nature of a trade secret. […].

The court concluded that confidential or private information, which was capable of commercial exploitation but which was only protected by the law of confidence, did not fall to be treated as property that could be owned and transferred. The Douglases had taken steps intended to ensure that their wedding was a private occasion and that no unauthorised photographs were taken or published. Hello! knew that. Hello! also knew that the Douglases expected commercially to exploit their private wedding by the publication of authorised photographs. Hello! deliberately obtained photographs that they knew were unauthorised and published them to the detriment of the Douglases. That rendered them liable for breach of confidence under English law. The Douglases' interest in the private information about events at the wedding did not amount to a right of intellectual property. The grant to OK! of the right to use the approved photographs was no more than an exclusive licence to exploit commercially those photographs for a nine-month period. That licence did not carry with it any right to claim the benefit of any other confidential information vested in the Douglases. It was the Douglases, not OK!, who had the right to protect those areas of privacy or confidentiality. The judge was wrong to hold that OK! could invoke against Hello! any right to commercial confidentiality in relation to the wedding or photographic images of it. Further, OK!'s claims founded on the economic torts were not made out.

Extract from : Reported by: Susan Denny, barrister,

Article mis en ligne le 4 août 2005
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