In suit for damages against English magazine that published photos secretly taken by paparazzo at movie stars' invitation-only New York wedding reception, English Court of Appeal (Civil Division) (1) approves Couples' damages judgment for invasion of their private event and (2) upholds damages awarded to publication with which Couple had contracted as exclusive publisher of authorized photographs
This litigation arose out of the publication by Hello! magazine of unauthorized photographs of the November 2000 wedding between movie stars, Michael Douglas and Catherine Zeta Jones (the Couple), at the Plaza Hotel in New York City.
After the Couple had negotiated with several U.K. publications, they chose the third plaintiff, OK! magazine. It then signed a contract with the Couple for the exclusive right to publish photographs of their wedding reception for 9 months thereafter. In return, the magazine was to pay each plaintiff £500,000. California law was to govern the contract.
Although the event seemingly went off very well, a paparazzo named Rupert Thorpe had somehow penetrated the reception's tight security, and had secretly taken photographs, including some of the Couple. He and another sold the photos to Hello! magazine. The two named magazines are "plainly keen rivals in the same market", and they each had an average weekly circulation in the U. K. of just over 450,000 copies.
The judge ruled that the Couple was entitled to damages and a perpetual injunction against Hello! because publishing the unauthorized photographs in England amounted to a breach of confidence, mainly because the reception was a private, invitation-only event. He also awarded damages. The judge also held that OK! had a right to damages from Hello! on substantially similar grounds. On the other hand, the judge found that OK!'s case against Hello! lacked merit to the extent that it rested on economic torts, such as intentionally interfering with OK!'s business or conspiring to injure it.
At a later hearing on damages, the judge spurned the Couple's contention that they were entitled to damages computed based on a hypothetical license fee. Instead, he assigned £3,750 to each for the chagrin caused by the publication of the unauthorized photographs; £7,000 to them as a couple for the cost and annoyance of having to rush the choice of the authorized photos to get them published in OK! no later than the unsanctioned photos in Hello!.
On the other hand, the judge awarded plaintiff OK! £1,026,706 for the loss of profits from its inability to fully capitalize on the authorized photographs resulting from the publication of the unauthorized ones. All the parties appealed. The Couple and OK! contingently cross appealed; the issues they raised pertain to the liability, if any, of Hello! Ltd. to OK!, and the quantum of damages awarded to the Couple.
Hello! made two main points to the appellate court. First it argued that the judge had erred in ruling that the Couple were entitled to any relief at all. Secondly, it urged that he had mistakenly held that OK! had a cause of action, based on confidence, stemming from the publication of the unauthorized photographs. The English Court of Appeal (Civil Division) generally rules in favor of the Couple and OK!.
The issues in relation to the Couple's claim are as follows: (1) (precinding from any effect of the OK! contract) did the law of confidence protect information about the wedding as being private information? (2) If so, did the OK! contract destroy that protection? (3) did the law of confidence protect the Couple's commercial interest in the information about their wedding?
On the first point, the Court summarizes several key opinions from the European Court of Human Rights (ECHR) applying the European Convention for the Protection of Human Rights and Fundamental Freedoms [Council of Europe, 4 November 1950, E.T.S. 5, as amended]. "It follows that the ECHR has recognised an obligation on member states to protect one individual from an unjustified invasion of private life by another individual and an obligation on the courts of a Member State to interpret legislation in a way which will achieve that result." [¶ 49]
"We conclude that, in so far as private information is concerned, we are required to adopt, as the vehicle for performing such duty as falls on the courts in relation to Convention rights, the cause of action formerly described as breach of confidence. As to the nature of that duty, it seems to us that the [U.K.] Human Rights Act of 1998 [1998 Chapter 42, available at www.opsi.gov.uk - The Editors] points in the same direction."
"The court should, insofar as it can, develop the action for breach of confidence in such a manner as will give effect to both Article 8 and Article 10 rights. In considering the nature of those rights, account should be taken of the Strasbourg jurisprudence. In particular, when considering what information should be protected as private pursuant to Article 8, it is right to have regard to the decisions of the ECHR." [¶ 53]
"The most recent and authoritative consideration that has been given to this area of the law is to be found in the speeches of the House of Lords in Campbell v. M.G.N., Ltd., [2004] U.K.H.L. 22, [2004] All E.R. (D) 67, [2004] 2 W.L.R. 1232 (House of Lords, May 6); [see 2004 International Law Update 67]."
"Ms. Naomi Campbell [a celebrated model] brought proceedings for breach of confidence in respect of an article in the Mirror newspaper which disclosed that she was a drug addict, and was attending meetings of Narcotics Anonymous. Details were given as to the frequency of these meetings and the article was illustrated by photographs of her on the doorstep of a building where such a meeting had just taken place. The photographs had been taken covertly from a car by a freelance photographer who had been employed by the newspaper for this purpose." [¶ 74] The Lords of Appeal ruled in her favor.
This Court notes that Campbell and related cases set up two requirements for the creation of a duty of confidence. "The first was that the information should be confidential in nature and the second was that it should have been imparted in circumstances importing a duty of confidence. As we have seen, it is now recognised that the second requirement is not necessary if it is plain that the information is confidential, and for the adjective "confidential'' one can substitute the word "private'."
"What is the nature of "private information?' It seems to us that it must include information that is personal to the person who possesses it and that he does not intend shall be imparted to the general public. The nature of the information, or the form in which it is kept, may suffice to make it plain that the information satisfies these criteria." [¶ 83]
Moreover, the Court stresses, this is no mere verbal description of the Couples' wedding reception. "This action is about photographs. Special considerations attach to photographs in the field of privacy. They are not merely a method of conveying information that is an alternative to verbal description. They enable the person viewing the photograph to act as a spectator (in some circumstances voyeur would be the more appropriate noun) of whatever it is that the photograph depicts."
"As a means of invading privacy, a photograph is particularly intrusive. This is quite apart from the fact that the camera, and the telephoto lens, can give access to the viewer of the photograph to scenes where those photographed could reasonably expect that their appearances or actions would not be brought to the notice of the public." [¶ 84]
"The intrusive nature of photography is reflected ... by the authorities. In Theakston v. M.G.N., Ltd., [2002] E.W.H.C. 137 [the judge] refused an injunction restraining publication of a verbal depiction of the claimant's activities in a brothel. He granted, however, an injunction restraining the publication of photographs taken of these activities."
The Theakston opinion declared that ""This protection [of privacy] extended to photographs, taken without their consent, of people who exploited the commercial value of their own image in similar photographs, and to photographs taken with the consent of people but who had not consented to that particular form of commercial exploitation, as well as to photographs taken in public or from a public place of what could be seen, if not with a naked eye, then at least with the aid of powerful binoculars." [¶ 85]
"Had the wedding taken place in England, and putting on one side the effect of the OK! contract, only an affirmative answer could be given to the question of whether those acting for Hello! knew that the information depicted by the unauthorised photographs was fairly and reasonably to be regarded as confidential or private. Applying the test propounded by the House of Lords in Campbell v. M.G.N., Ltd., photographs of the wedding plainly portrayed aspects of the Douglases' private life and fell within the protection of the law of confidentiality, as extended to cover private or personal information." [¶¶ 94-95]
"Does it make any difference that the wedding took place in New York? The judge's finding that Mr. Thorpe must at least have been a trespasser under the law of New York was not challenged. Hello!'s argument ... was as follows. The information in the unauthorised photographs can only have attracted the protection of the law of confidence (1) as a consequence of the subject matter of the photographs or (2) as a result of the circumstances in which they were taken."
Since a New York wedding reception is not a shameful event, "[i]t followed that ... the Douglases had to rely upon the circumstances in which the information was published. ... Under the law of New York, there would have been no inhibition upon Mr. Thorpe publishing the photographs which he had taken. Hello!, having derived the photographs from Mr. Thorpe, could be no worse off." [¶ 99]
"The law of New York clearly entitled the Douglases to arrange for their wedding to take place in circumstances designed to ensure that events at the wedding remained private, at least so far as photographic detail was concerned. The fact that photographs taken in violation of that privacy might have been published with impunity in New York has no direct bearing on whether the information fell to be treated as private and confidential in England." [¶ 101]
"To summarise our conclusion at this stage: disregarding the effect of the OK! contract, we are satisfied that the Douglases' claim for invasion of their privacy falls to be determined according to the English law of confidence. That law, as extended to cover private and personal information, protected information about the Douglases' wedding." [¶ 102]
The question remains whether New York law applies to the Couple's claim for injury to their commercial interests in England by publication of the unauthorized photos. "We have concluded that it does not. ... The Douglases had taken steps, permitted under the law of New York, which were intended to ensure that their wedding was a private occasion and that no unauthorised photographs were taken or published. Hello! knew this. Hello! also knew that the Douglases expected commercially to exploit their private wedding by the publication of authorised photographs. Hello! deliberately obtained photographs that they knew were unauthorised and published them to the detriment of the Douglases. This renders them liable for breach of confidence under English law." [¶ 120]
The Court then addresses the validity vel non of OK!'s claim for violation of confidence as against Hello! "We have recognised that the Douglases retained a residual right of privacy, or confidentiality, in those details of their wedding which were not portrayed by those of the official photographs which they released. It was in the interests of OK! that the Douglases should protect that right, so that OK! would be in a position to publish, or to authorise the publication of, the only photographs that the public would be able to see of the wedding. On analysis, OK!'s complaint is not that Hello! published images which they had been given the exclusive right to publish, but that Hello! published other images, which no one with knowledge of their confidentiality had any right to publish."
"The [Couple] themselves argued that "the unauthorised photographs were taken at different moments to the authorised ones, showed different and informal incidents at the reception, and were naturally much less posed'. These photographs invaded the area of privacy which the Douglases had chosen to retain. It was the Douglases, not OK!, who had the right to protect this area of privacy or confidentiality. Clause 10 of the OK! contract expressly provided that any rights not expressly granted to OK! were retained by the Douglases.
"The claim successfully advanced by the Douglases in this litigation is at odds with OK!'s claim. For these reasons we conclude that the judge was wrong to hold that OK! was in a position to invoke against Hello! any right to commercial confidence in relation to the details of the wedding or the photographic images portraying these." [ ¶¶ 136-37]
The Court of Appeal notes a further point. "This case involves a conflict between the Article 8 right of respect for private and family life and the Article 10 right of freedom of expression. The Convention only permits restrictions of either right where "prescribed by law'." [¶ 148]
"If one postulates that, at the time of the publication by Hello! of the unauthorised photographs, English law was insufficiently clear to satisfy the requirements of providing protection to privacy in a manner "prescribed by law', the court was on the horns of a dilemma. If it gave a decision which developed the law so as to provide a protection to respect for privacy "prescribed by law', it risked infringing Hello!'s Article 10 rights."
"If, however, it ruled that the law was insufficiently clear to provide a remedy, it perpetuated the infringement of the Douglases' Article 8 rights. It seems to us that in this situation the proper course was for the court to attempt to bring English law into compliance with the Convention, even if this was at the cost of a restriction, in the instant case, of Hello!'s Article 10 rights by findings which, up to that moment, could not be said to have been "prescribed by law'."
"For all these reasons, we dismiss Hello!'s attack on the judgment below on the ground that it imposed a restriction on Hello!'s right to freedom of expression that was not prescribed by law of sufficient certainty." [¶¶ 150-51]
Citation: Douglas v. Hello! Ltd., [2005] E.W.C.A. CIV. 595, [2005] All E.R. (D) 280 (Ct. App. Civ. Div., May 18) (approved judgment).
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