House of Lords Ruling on Publishing Photographs as a Breach of Confidence

On May 2, the English House of Lords decided Douglas et al v Hello! Limited et al [2007] UKHL 21, the end of a six-year battle between rivals OK! Magazine (OK) and Hello! Magazine (Hello) over the publication of photographs taken at a celebrity wedding at which all unauthorized photography had been banned. The case involved photos taken secretly at the wedding of film stars Michael Douglas and Catherine Zeta-Jones. In order to retain control over the media and their privacy, the couple sold exclusive rights to their wedding photographs to OK for £1 million. The same day as OK's photos were published, Hello published pictures taken surreptitiously by a freelance photographer. There were two claims at issue in the action by OK against Hello. The first claim was for the tort of causing loss by unlawful means and the Law Lords unanimously dismissed it. The second claim, however, was for breach of confidence and on this ground, by a split majority of 3-2, the Law Lords upheld the action. The main issue in the second claim was whether the photographs represented confidential information. The majority ruled that the disputed photographs provided information as to how the wedding looked and constituted confidential information. OK had paid £1 million for the exclusive right to publish any photographic images of the wedding and, unless there was some conceptual or policy reason why it should not have the benefit of that right, none being found, Hello had committed a breach of confidence when it published its own photos of the wedding. Lord Justice Hoffman, on the question of the nature of the right being upheld, stated:

"There is … no question of creating an "image right" or any other unorthodox form of intellectual property. The information in this case was capable of being protected … simply because it was information of commercial value over which the Douglases had sufficient control to enable them to impose an obligation of confidence".

However, the minority took an entirely different view. Lord Justice Nicholls, in his minority reasons, stated:

"The secret information cannot lie in the difference between the unapproved photographs and the approved photographs … because the six unapproved photographs contained nothing not included in the approved photographs. This being so, the inevitable differences, in expression and posture, and so on, cannot constitute "confidential" information for the purposes of this equitable principle. [These differences are] insufficiently significant to call for legal protection".

Given the divergence of views among the five Law Lords, each of whom wrote separate reasons, and the narrowness of the majority, it seems unlikely that this question has been laid to rest with finality. For the full reasons for judgment, visit: http://tinyurl.com/2kweff For commentary, see: http://tinyurl.com/2kweff; and http://impact.freethcartwright.com/2007/05/ok_v_hello_from.html Summary by: Oren Weichenberg