Douglas v Hello! Ltd

Prior restraint of publication under section 12(3) of the Human Rights Act 1998 requires the applicant to show that it is likely to establish at trial that publication should not be allowed. The court must assess the merits and then exercise its discretion by balancing the competing rights and the risks of irremediable injustice.

Unauthorised photographs can convey confidential information and may found a claim protecting privacy. However, where the principal privacy interest has been commercially exploited and any loss can be compensated by damages or an account of profits, an injunction may be disproportionate. The particular harm caused by preventing a time-sensitive publication is a material countervailing consideration.

Michael Douglas and Catherine Zeta-Jones gave OK! magazine exclusive rights to publish authorised photographs and material concerning their wedding. Hello! magazine acquired and published nine unauthorised photographs. Buckley J granted an urgent without-notice injunction, which Hunt J continued pending trial.

Hello! appealed. The claimants relied on breach of confidence, privacy, malicious falsehood and unlawful interference with contractual relations. The Court of Appeal had to decide whether the interlocutory restraint on publication should continue, in a case where the magazine issue was highly time-sensitive and publication engaged freedom of expression.

1. Appeal allowed unanimously. The injunction was discharged. The court exercised the discretion afresh because Hunt J had given no sufficient reasons for continuing the injunction.

2. Keene LJ, with whose construction Brooke LJ expressly agreed, held that section 12(3) of the Human Rights Act 1998 bears its ordinary meaning. Before restraining publication, the court must be satisfied that the applicant is likely at trial to establish that publication should not be allowed. This requires an assessment of the merits, not merely the identification of a serious issue. It does not give Article 10 automatic priority over competing Convention rights.

3. The photographs were capable of being confidential information. They conveyed visual information about the event and its participants which words or recollected sketches could not reproduce. The evidence made a breach of confidence arguable, and Brooke LJ considered that the claimants were likely to establish that publication should not be allowed on that ground. Keene LJ and Sedley LJ also held that the law of confidence could protect privacy without a pre-existing contractual or confidential relationship, depending on the circumstances in which the information was obtained.

4. Nevertheless, prior restraint was not justified. The loss to Hello! if its weekly issue were stopped could be difficult to quantify. By contrast, OK!'s principally commercial loss could be compensated by damages or an account of profits if it succeeded at trial. The first two claimants had retained an interest in editorial control over authorised photographs, but most of the privacy asserted had been commercially sold. Its infringement was, on these facts, compensable in money.

5. Sedley LJ would describe privacy as a qualified legal right, informed by Article 8 and protected through developing confidence principles. Brooke LJ did not find it necessary to decide that wider question. Keene LJ likewise treated a free-standing cause of action as unnecessary to resolve the appeal.

6. The malicious-falsehood claim could not justify restraint because “exclusive photographs” was not likely to be understood as a false claim to exclusive rights in all wedding photographs. The unlawful-interference claim was too uncertain on the available evidence, including the absence of evidence of New York law. The action was ordered to be transferred to the Chancery Division.

• Court of Appeal (Civil Division): Appeal allowed and the interlocutory injunction discharged: [2001] QB 967.

• High Court, Queen's Bench Division (Hunt J): Continued the urgent injunction restraining publication pending trial. Citation not stated in the judgment.

• High Court, Queen's Bench Division (Buckley J): Granted an interim without-notice injunction by telephone on 20 November 2000. Citation not stated in the judgment.