The Court of Appeal’s decision handed down on 21 December concerning the publication of unauthorised photos of the wedding of Michael Douglas and Catherine Zeta-Jones has given the green light to breach of privacy claims in the UK courts. The court allowed Hello!’s appeal against an interim injunction preventing publication of the photos, but clearly indicated that Douglas and Zeta-Jones had a legal right of privacy which had been infringed.
The wedding took place on 18-19 November at the Plaza Hotel New York. OK! magazine was granted exclusive rights (reportedly for £1 million) to publish colour photographs of the wedding taken by a photographer hired by Douglas and Zeta-Jones, who retained wide approval rights over any photos to be published. Security at the wedding was tight. Workers at the reception were subject to confidentiality agreements and strict security checks. Guests received with their invitations a separate written notice requesting no photography.
The evening after the wedding OK! got wind of the fact that unauthorised photos were being offered for sale (possibly taken by Phil Ramey, a well known Californian paparazzo) and that Hello! was about to publish them in the UK. An injunction was initially obtained by telephone that same evening.
Hello!’s appeal against the injunction was successful because the court decided that Douglas and Zeta-Jones had sold most of their privacy rights to OK! and if Hello! had infringed their remaining rights they could be made to pay for this after a full trial. If the wedding had been a genuinely private affair, the case for an injunction would have been “unanswerable”.
What the court has done, in effect, is to extend the law of confidence to cover individual privacy. Invasion of privacy claims may still come under the legal label of “breach of confidence”, but if this decision is followed it will not be necessary to construct an artificial relationship of confidentiality between intruder and victim. The law will recognise privacy itself as a legal principle “drawn from the fundamental value of personal autonomy”.
In reaching this unanimous decision the three judge court had to carry out a delicate balancing exercise between the conflicting principles of freedom of speech and respect for private and family life enshrined in the European Convention on Human Rights. The case illustrates how significantly the legal landscape has altered in the three months which have elapsed since the ECHR was incorporated into UK law by the Human Rights Act.
The Hello! decision has predictably been criticised by the press and is not good news for UK photographers. The UK’s status as a “privacy haven” has probably gone for good.
It remains to be seen whether the courts will follow the US example by constructing a “right of celebrity” to match the right of privacy. Celebrities have comparatively little protection in the UK against unauthorised commercial exploitation of their image, for example in advertising and unofficial merchandise. Judges have shown few signs of wanting to develop commercial personality rights of this type, but the line between protecting privacy and controlling the exploitation of a celebrity’s image may well end up being tested in 2001.
The 42 page judgment contains some other important points for media lawyers which are set out below.
Other points in the Hello! decision
- If photographs are in digital form their unauthorised publication by a newspaper may breach the Data Protection Act 1998, thereby overriding the newspaper’s right to freedom of speech under Article 10 of the ECHR. (para 56)
- Now that the Human Rights Act is in force, the UK courts should be very cautious when seeking to derive assistance from judgments in other jurisdictions founded on different rights-based charters. (para 76)
- Since the UK government has left it to the courts to develop the law of privacy, it is the judges who must develop the law so as to give appropriate recognition to Article 8 rights. (para 88)
- A newspaper which flouts Section 3 of the Press Complaints Commission Code of Practice is likely to have its claim to freedom of expression trumped by Article 10(2) considerations of privacy. (para 94)
- Publishers complaining of spoiling tactics by a rival publisher are “unattractive suitors for the bounty of a court of equity” if they themselves have previously engaged in similar tactics against the rival. (para 100)
- It remains an open question whether the obligation of courts under the Human Rights Act to act consistently with the ECHR merely requires the courts’ procedures to be Convention-compliant, or to apply the law to give effect to the Convention principles, save where primary legislation plainly says otherwise. (para 128)
- ECHR jurisprudence does not give Article 10(1) the presumptive priority which is given to the US First Amendment. Everything depends ultimately on a proper balance between privacy and publicity in the situation facing the court. (para 135)
- The wording of Section 12(3) of the Human Rights Act (no prior restraint “unless the court is satisfied that the applicant is likely to establish that publication should not be allowed”) must be given its normal meaning. (para 153)
- A picture is worth a thousand words. Photographs conveying to the public what an event and its participants looked like are inherently capable of being the subject of a breach of confidence. (para 165)