Lords ruling for OK! could rein in the paparazzi

The House of Lords ruled today that Hello! magazine broke the law when it published snatched shots of the wedding of Catherine Zeta Jones and Michael Douglas. OK! magazine had paid £1 million for exclusive shots of the event.

According to one privacy law expert, the ruling means that courts can exert a greater degree of control over paparazzi photographs than previously.

"OK! was finally vindicated in its battle against the 'spoiler' photographs and the highest court has expressed its distaste for the argument that, in the hard commercial world of the celebrity magazine, all is fair in the battle for circulation," said Rosemary Jay, head of the information law team at Pinsent Masons, the law firm behind OUT-LAW.COM. "It is finally clear which side of the line the use of paparazzi photographs falls on."

Rosemary Jay's comments have been reproduced in full below.

In his ruling, Lord Hoffman said the long-running case was not a privacy case but one about commercial confidentiality. It should not, he said, turn on the emerging privacy law developing in the English courts but on celebrity photographs as commercially valuable pieces of information and nothing more.

The Law Lords' decision overturned a Court of Appeal ruling, which itself had reversed the High Court's original ruling backing OK!.

Though they were split, the majority of the Lords decided that the publication in Hello! of pictures taken by a New York photographer who illicitly gained entry to the wedding was a breach of confidence.

Lord Hoffman wrote: "The point of which one should never lose sight is that 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. That was quite clear."

He continued: "Unless there is some conceptual or policy reason why they should not have the benefit of that obligation, I cannot see why they were not entitled to enforce it. And in my opinion there are no such reasons. Provided that one keeps one’s eye firmly on the money and why it was paid, the case is, as [initial High Court judge] Lindsay J held, quite straightforward."

The ruling was based on the view that an obligation of confidence existed even for people, such as the rogue photographer, who had not explicitly agreed to it.

"It was agreed in the appeal trial that the Douglases had gone to great lengths to keep their wedding 'private' in the sense of controlling all the photographs and not allowing unauthorised guests and so on," said Jay. "It was agreed that they had succeeded in creating an obligation of confidence owed to them by all those who went to the wedding, whether invited or not, and that the taking of the photographs without consent and the subsequent publication was a breach of their personal rights of confidentiality."

The photographer who gained admission to the wedding sold the pictures to Hello!, which began preparing to publish them. OK!, realising this, rushed out its own edition of its magazine two days ahead of the planned date. It published its edition slightly earlier than Hello!.

One of the Law Lords, Lord Nicholls of Birkenhead, said that the obligation of confidence disappeared once OK! had published the official photographs because there was little difference between the photos.

"This seems to me a point on which theory is in danger of losing touch with reality," said Hoffman, disagreeing. "It is certainly the case that once information gets into the public domain, it can no longer be the subject of confidence. Whatever the circumstances in which it was obtained, there is no point in the law providing protection. But whether this is the case or not depends on the nature of the information.

"[Photographer] Mr Thorpe was subject to an obligation of confidence in respect of the pictures which he took. Hello!, by reason of the circumstances in which they acquired the pictures, were subject to the same obligation. How could it be destroyed by OK!’s publication of other photographs a few hours earlier?" said Hoffman.

"In this case, 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," he said. "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 Mr Thorpe 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’s words, 'call for legal protection', had caused substantial financial loss to OK!?"

The case has been controversial from the start, and has touched on a wide range of issues, said Jay. "The whole debate skirts some pretty thorny ground. Would ruling for OK! mean that the House of Lords was endorsing a right of personality, the right to sue for control over image? Would it mean that the law was moving to protect 'character merchandising'? The House seems determined to avoid all those issues."

"Lord Hoffman took the straight view that if the arrangements that gave rise to the confidentially were entered into for the benefit of OK! then OK! was entitled to take the benefit. He held that the intruder and hence in its turn Hello! owed an obligation of confidence to OK! which they had deliberately breached and OK! was entitled to win the case."

Rosemary Jay's comments in full

To make sense of today's judgment by the House of Lords you have to bear in mind the arguments and the nature of the judgment in the last round in the Court of Appeal.

The Douglases took action against Hello! jointly with OK!. The Court of Appeal considered the confidentiality rights of the two parties – that is the Douglases on the one hand and Hello! on the other. It was agreed that the Douglases had gone to great lengths to keep their wedding 'private' in the sense of controlling all the photographs and not allowing unauthorised guests and so on. It was agreed that they had succeeded in creating an obligation of confidence owed to them by all those who went to the wedding, whether invited or not, and that the taking of the photographs without consent and the subsequent publication was a breach of their personal rights of confidentiality.

The view seems to have been taken (and was made explicit by Hoffman in the latest judgment) that even though the law in the US would have allowed their right to confidentiality to be overridden by the primacy of the right to freedom of speech in the US, the confidentiality persisted and there was no override in the UK. Accordingly, the publication of the photographs in the UK was a breach.

However, the Court of Appeal went on to say that the rights applied only to the Douglases and so OK! had no rights that had been breached. As a result the award of damages to OK! was overturned. That is why OK! went to the Lords, and why they went alone. The Douglases had won their part of the case and there was nothing more they could do to support OK!.

The House of Lords was not therefore looking at privacy in the normal sense but whether OK! could claim the benefit of the confidentiality that the Douglases had imposed on guests, and whether a breach of that could allow OK! to sue. As Lord Walker put it, any successful claim by OK! "has to be based on a right to short term confidentiality for a commercial secret".

The whole debate skirts some pretty thorny ground. Would ruling for OK! mean that the House of Lords was endorsing a right of personality, the right to sue for control over image? Would it mean that the law was moving to protect 'character merchandising'? The House seems determined to avoid all those issues. In fact in the judgment Lord Nicholls in paragraph 253 is quite trenchant in setting out what they are not doing.

So what did they decide?

Lord Hoffman took the straight view that if the arrangements that gave rise to the confidentially were entered into for the benefit of OK! then OK! was entitled to take the benefit. He held that the intruder, and hence Hello!, owed an obligation of confidence to OK! which they had deliberately breached. OK! was entitled to win the case.

Lord Nicholls demurred. The unauthorised photographs did not contain anything secret that could give rise to a right and OK! had no claim, he said.

Lord Walker also demurred. In essence he said that OK! could only claim for breach of confidence in information which was of its nature confidential, such as a trade secret. The mere fact that the Douglases sought to restrict entry to their wedding did not make the spectacle confidential and there could be no corresponding rights of confidence in the picture. To hold that such a right existed would be to "go some way to creating an unorthodox and exorbitant form of intellectual property," he said at paragraph 297.

Baroness Hale and Lord Brown gave shorter judgments. They agreed with Lord Hoffman and so OK! has carried the day. Baroness Hale's comments on the OK! case were brief and to the point. She could see no reason in principle why the right to the photographic images to the wedding should not be protected . They were undoubtedly a secret and a valuable commercial one. In her view there was no extension of intellectual property rights in a finding that the law would protect them.

Lord Brown also had no difficulty in regarded the sight of and the photographs of the wedding spectacle as commercially confidential information and that every photograph was imbued with this right. Thus the publication of some photographs did not destroy the confidentiality which could still be breached by publication of other unauthorised ones.

OK! was finally vindicated in its battle against the "spoiler" photographs and the highest court has expressed its distaste for the argument that, in the hard commercial world of the celebrity magazine, all is fair in the battle for circulation. It is finally clear which side of the line the use of paparazzi photographs falls on.

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