Douglas & Ors v Hello! Ltd & Ors

Equity protects confidential information where the information has the necessary quality of confidentiality, was imparted in circumstances importing an obligation of confidence, and has been used without authorisation to the claimant’s detriment. Those principles may protect unauthorised photographs of a private event, including where the event and its authorised images have commercial value.

Freedom of expression must be balanced against confidentiality under the Human Rights Act 1998. The Press Complaints Commission Code is a relevant consideration where journalistic material is concerned. An intention to publish selected authorised material does not necessarily destroy confidentiality in the unpublished material. A general law of privacy need not be developed where the law of confidence supplies adequate protection.

Michael Douglas, Catherine Zeta-Jones and Northern & Shell plc, publisher of OK!, claimed against Hello! Ltd, Hola SA and others after Hello! published unauthorised photographs taken inside the Douglases’ private wedding. The claim included breach of confidence, data protection, unlawful interference, conspiracy, privacy and related relief.

The claim followed interlocutory proceedings in which the Court of Appeal lifted an injunction restraining publication. The trial concerned liability only. The central issues were whether the wedding photographs were confidential information, whether Hello!’s conscience was affected by the circumstances in which the photographs were obtained, whether publication was justified by freedom of expression, and whether the claimants had established the alternative causes of action.

1. Breach of confidence. The Hello! Defendants were liable to all three claimants for breach of confidence. The wedding and its photographic representation had the necessary quality of confidentiality. The private character of the event, the extensive security arrangements, the prohibition on unauthorised photography and the exclusive commercial arrangements all supported that conclusion. The photographs were imparted to those present, including the intruder, in circumstances importing an obligation of confidence.
2. The ordinary three-element approach in Coco v A N Clark (Engineers) Ltd applied: the information must possess the necessary quality of confidence, it must have been imparted in circumstances importing an obligation of confidence, and there must be unauthorised use causing detriment. The first element concerned inaccessibility and public knowledge, not whether disclosure would be highly offensive.
3. Hello!’s conscience was tainted. The defendants knew of OK!’s exclusive contract, understood the security and confidentiality normally associated with such an arrangement, knew that the photographs had been taken surreptitiously, and deliberately avoided asking how they had been obtained. Their publication was therefore unconscionable even though the taking of the photographs had not been expressly commissioned in advance.
4. The court balanced confidentiality against freedom of expression under sections 6 and 12 of the Human Rights Act 1998. No public interest was advanced for the unauthorised photographs. The Press Complaints Commission Code supported the claimants: the photographs involved intrusion into private lives without consent and were obtained through misrepresentation or subterfuge. The balance favoured confidentiality.
5. The intended publication of authorised photographs did not destroy the claimants’ confidentiality. In a commercial confidence case, publication selected and controlled by the confider may be the means by which the confidential material is exploited. The defendants could not defeat liability by publishing before the authorised material appeared or by purchasing rather than taking the photographs.
6. A free-standing law of privacy was not required to decide the case. The court declined to construct one, observing that Parliament was better placed to address the wider subject and that the law of confidence provided adequate protection on these facts.
7. The unauthorised photographs constituted personal data. The Hello! Defendants were data controllers and the publication formed part of processing. The journalistic exemption under section 32 of the Data Protection Act 1998 was unavailable because there was no credible basis for believing that publication was in the public interest. The transitional provisions in Schedule 8 did not apply.
8. The processing was unfair and unlawful and did not satisfy Schedule 2. The legitimate-interest condition in paragraph 6 was not met because publication caused substantial prejudice to the Douglases’ rights and interests. Nevertheless, the breach caused no recoverable damage beyond a nominal award because the court considered that the defendants would have published and the Court of Appeal would still have treated damages as an adequate remedy.
9. The claims for unlawful interference with business, conspiracy, exemplary damages and aggravated damages failed. The court found no requisite intent to injure and no causal link between the false material presented to the Court of Appeal and its decision to lift the injunction. The first five defendants were otherwise not liable.
10. The Hello! Defendants were required to give an undertaking or be subject to an injunction restraining republication. Quantum for the breach of confidence was left for a later hearing. A nominal award was made under the Data Protection Act.

The judgment was a first-instance trial decision. It records earlier interlocutory proceedings in which an injunction was granted and then lifted by the Court of Appeal, but no appellate history of this trial judgment is stated.