In our April 2003 early warning we reported on the judgment of Mr Justice Lindsay on the issue of liability in the epic legal struggle between Michael Douglas and Catherine Zeta-Jones, OK Magazine and Hello! On 7 November Mr Justice Lindsay delivered his judgment on the issue of damages.
The judge subsumed the Douglases’ claims for distress and costs wasted by having to rearrange the preparations and transit of wedding photographs by OK within their claim for a notional licence fee or alternative forms of compensation. The claim by OK for loss of revenue was in the alternative to its claim for a notional licence fee. Since OK’s notional licence fee of £125,000 was less than the amount of damages which would be assessed on a compensatory basis, it was on the latter basis that the judge awarded damages. He concluded that had the events complained of not occurred, there would have been two OK editions covering the wedding, and considering the various costs of production, prospective sales, loss of advertising revenue etc, Hello! was ordered to pay a sum slightly in excess of £1million to OK.
This was assessed by means of the usual principles on which breach of confidence claims are adjudicated. The more interesting claim was the “privacy” claim on the part of the Douglases themselves. The judge made a distinction between the distress occasioned by the knowledge that there had been an intruder at the wedding, and that occasioned by the publication of the unauthorised photographs, holding Hello! liable only for the latter. He awarded the Douglases £3,750 each for distress. For the costs of bringing forward the arrangements for publishing the authorised photographs, the judge awarded £7,000 against the £13,000 sought, and a nominal £50 each under the Data Protection Act.
The judge anticipated criticism of the sum awarded to Hello! by saying that he did not regard it as of a size “likely materially to stifle free expression and yet…such as may make Hello! alive to the unwisdom of its acting as it did.”
For the publishing world, this is a sober warning against unlawful “spoilers” directed at commercial rivals. By contrast, the sums awarded to Mr and Mrs Douglas provide little financial disincentive when it comes to breaches of confidence invading individual privacy.