Bulletins Story: DOUGLAS v HELLO: THE COURT OF APPEAL HAS ITS SAY

Date: 20 May 2005

The long running battle over the publication of Michael Douglas and Catherine Zeta Jones' wedding photographs has reached the Court of Appeal, which handed down judgment on Wednesday on the various appeals before it. The wide range of issues permitted the court to lay down guidance on a number of principles in the sphere of privacy - the central battleground between the rights of the individual and those of the corporate publisher.

After a very hard-fought trial Mr Justice Lindsay had found both for the Douglases and OK! magazine, awarding OK! approximately £1m in damages for its commercial loss by the Hello! spoiler, and the Douglases £14,750 for distress and inconvenience. Hello! were also faced with a bill for around £1m in costs.

Hello! appealed the award in favour of OK! both as to liability and the amount. This appeal was upheld. The court found that the economic torts relied on by OK! magazine concerned activity which had actually been directed at the claimant, and that the purpose of the conduct must be the causing of economic loss to the claimant.  The court found that this was not made out by OK! in this case, but that Hello! would have been liable for the publication had the necessary elements been proved. The court did, however, find that at the time the photographs were published by Hello! they had not yet emerged into the public domain. Nonetheless, subject to any appeal to the House of Lords, OK! now face the prospect of having to return the nearly £2m they were awarded in damages and costs.

The appeal against the award of damages to the Douglases was dismissed.  The court also laid down that the privacy rights in photographs of private occasions subsist even after their commercial sale, and that by extension such privacy rights are therefore capable of commercial exploitation. The issue of whether the sale of such rights to a publisher also confers the right to sue depends on the terms of the contract. In this case the court found that this right had not passed to the publisher.

The case will, however, be a landmark decision in the law of privacy for two rulings which were not actually related to issues before the court, and which are therefore strictly speaking not binding in future cases.

Firstly, the court found that its own earlier decision to lift the interim injunction granted to the Douglases was wrongly decided, and that it should have remained in place because damages would not have been an adequate remedy.

Secondly, the court found that following the decision of the European Court of Human Rights in the Von Hannover case, the UK courts had a duty to protect the privacy rights given to the individual by virtue of Article 8 of the European Convention on Human Rights.

This must mean that the prospects for an individual seeking to protect his or her privacy via an injunction have been improved. This will be of concern to the media, but should come as something of a relief to claimants like David and Victoria Beckham for whom the right to privacy, and in particular the availability of interim relief, is clearly a vital issue.

Jonathan Coad
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