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Sarah Thomas of
Charles Russell (the law firm that acts for Hello! Magazine) examines
the implications of the Court of Appeal decision in the case by OK!,
Catherine Zeta-Jones and Michael Douglas against Hello!
The Protagonists
The
highly publicised rivalry between the celebrity and entertainment
magazines, HELLO! and OK!, was recently played out in the courts in a
dispute sparked by the celebrity wedding of last year between
Catherine Zeta-Jones and Michael Douglas. Following OK!'s successful
£1 million bid for exclusive rights to publish the photographs of the
highly publicised wedding, both OK! and the couple were apparently
outraged when HELLO! sought to publish, in advance of the OK! 'exclusive',
its photographs of the happy event. The High Court granted the couple
and OK! an injunction to prevent HELLO! from publishing its weekly
edition that featured the disputed photographs.
However, after three
days of heated legal debate in the Court of Appeal, that injunction
was overturned and HELLO! was free to publish, albeit three days late,
to an increasingly expectant public. Having obtained a set of
photographs from an independent third party, the Court of Appeal found
that HELLO! was not in breach of any copyright that OK! may have had
in its photographs of the wedding; neither was it found to be acting
maliciously by proclaiming its pictures to be 'exclusive'. However, it was Douglas and Zeta-Jones'
claim for breach of
confidence that was the real focus of the interim Court of Appeal
hearing.
The
Plot
The
reason why the hearing attracted so much interest was that in addition
to their claim for breach of confidence, Douglas and Zeta-Jones argued
that they had a legal right to respect for their privacy following the
enactment of the Human Rights Act (which came into force in October
1999) and that that right had been infringed by the actions of HELLO!.
After hearing evidence of the £1 million deal between the couple and
OK!, the wedding invitation list that ran to over 300 guests and the
intense publicity that surrounded the build up to the wedding, the
Court of Appeal came to the view, on the grounds of proportionality,
that HELLO!'s right to freedom of expression outweighed any
competing rights that the claimants may have to privacy.
The ultimate
decision to lift the injunction was made, at least partly, on the
basis that the Douglasses could be compensated in damages if they
eventually won at trial. Despite this endorsement of HELLO!'s right
to publish, the Court's judgment did fire a warning shot to the
press by recognising for the first time in English law the right to
privacy as a legal right that is capable of existing independently
from that of the law of confidential information.
But why
was it necessary to consider a claim for invasion of privacy in the
first place? No one could have failed to be aware of the elaborate
security measures that had apparently been put in place by Douglas and
Zeta-Jones for the wedding. The Court heard detailed evidence of the
confidentiality agreements that had been signed by all employees at
the reception and the polite written reminders to guests that
photographs would not be allowed. Despite this evidence, the Court
decided that the Claimants may not be able, in fact, to rely at trial
on their claim for breach of confidence and it was therefore prepared
to explore the additional claim to privacy. For a confidence claim to
succeed, the Claimants would have to establish that the photographs
were taken by an employee or guest and show that a relationship of
confidence existed between them.
The Court concluded that there was a
very real possibility that this would not be the case and the
photographs may be found to have been taken by someone with whom no
relationship of confidence could be established. Accordingly, the
Court went on to examine the development of the law of confidence and
to determine if the Claimants could bolster the claim with an action
for invasion of privacy. Despite this being an interim hearing, the
Court was prepared to recognise, for the first time, that in cases
where a Claimant is potentially without redress, say where a
relationship of confidentiality cannot be established, it can, in
turn, seek redress for invasion of privacy.
The
three Lord Justices charted the progress of the common law in this
area whereby the Courts have created, in effect, an artificial
relationship of confidence in order to protect what is essentially an
individuals claim to privacy but dressed up in the name of confidence.
But the Court now also had to give equal consideration to the Human
Rights Act that many have hoped would provide a fresh aspect to the
law of privacy. Although the Human Rights Act clearly enshrines the
right to privacy as set out in Article 8 of the European Convention on
Human Rights (and therefore allows individuals to enforce this and
other Convention rights), the larger consideration is whether it
allows private individuals to bring proceedings against one another
for breaches of these rights, i.e. does the Act have 'horizontal
effect'? The question had to be asked because of section 6 where it
is stated that the Act only applies to public authorities ('vertical
effect').
In order to allow Douglas and Zeta-Jones to assert their
right to privacy under Article 8, the Court needed to consider whether
or not the Act did have 'horizontal effect'. The argument in
favour of horizontal effect is that Courts are public bodies and as
such they are obliged to give regard to the Convention when applying
the common law in litigation between private individuals. As it was an
interim hearing, the Court did not analyse this point in depth, but it
did accept that it had to give some regard to the effect of Article 8
together with the other rights enshrined in the Convention. It was
made clear in the judgment that the media, although clearly not a
public body, would not be immune from respecting the protections
afforded to individuals by virtue of the Act.
The
Twist
Despite
support for the judgment by those keen to see the right to privacy
finally enshrined in English law, eyebrows have also been raised at
the Court's decision to use a celebrity spat involving two
publicity-seeking individuals, not adverse to living their lives in
the spotlight, in which to take this progressive step. Although it
seems to be generally accepted that the recognition of a right to
privacy is a logical and desirable step, those opposed to the
extension of the law in this way felt this was a classic case where
the right to privacy was in danger of being misapplied at the expense
of the right to freedom of expression enshrined under Article 10 of
the Convention. The concern of the press was that the individual's
right to privacy would prevail over the freedom of expression, as
happened in the recent Thompson/Venables ruling where the court
permanently enjoined the press from releasing details of the two boys.
However, in the Douglas case, the court believed that press
restriction was not warranted after carefully considering the
competing rights of the parties involved. When it came to considering
whether an injunction should have been granted, the Court found that
the privacy rights of Douglas and Zeta-Jones were not strong enough to
defeat HELLO!'s competing right to freedom of expression. Lord
Justice Brooke, in particular, was critical of the couple's claim
that the wedding was a 'private' affair given the intense
pre-wedding publicity and the invite list that spiralled into the
hundreds. Lord Justice Sedley concluded that they had sought worldwide
publicity by entering into a commercial agreement that provided for
extensive coverage of the wedding and the couple had turned their
right to privacy into a commercial transaction - it had, in effect,
been sold.
The
Court made it clear that it did not consider this to be a case where
an injunction was needed to protect the privacy of two private
individuals engaged in a private event. If it had been Mr and Mrs
Smith's wedding that had been infiltrated by an uninvited
photographer, or say Madonna's wedding where the couple genuinely
sought and managed to retain their privacy, then probably the Court’s
decision would have been different.
The
Happy Ending
The
final result appears on balance to be a fair one. It has demonstrated
that in actions brought by public figures, where the arguments in
favour of disclosure of information appear to outweigh their assertion
of a right to privacy, a Claimant will not automatically be entitled
to relief, at least not at the crucial interlocutory stage. However,
and perhaps more crucially, the judgment should also ensure that the
right can still effectively be used to protect those individuals with
no 'public' significance from unwanted media intrusions.
It can
be argued that, on this round at least, both HELLO! and the
celebrities in this case scored a victory. The individual's right to
privacy has finally been recognised by English law - yet the Court has
demonstrated that it will not use the powerful remedy of an injunction
to 'protect' those celebrities who seek to restrain the very
publicity that they have also sought to attract and control. But what
about OK!? Has the celebrity magazine inadvertently made a rod for its
own back, not to mention that of the rest of the English media? It
will be interesting to see if this celebrity driven spat between two
of England's biggest magazine rivals will open the floodgates to a
flurry of celebrity claims against the ever-intrusive media. Will it
see the retirement of the paparazzi photographer and his telephoto
lense? And more importantly to the two protagonists in this dispute,
how will it impact on OK!'s and HELLO!'s ability to scoop that
ever exclusive photograph of the next celebrity event of the year?
Sarah Thomas -
Charles Russell
Email. saraht@cr-law.co.uk
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