Michael Douglas and Catherine Zeta-Jones and OK! magazine, had entered into agreement whereby OK! magazine would pay £1 million for exclusive rights to publish photos from their wedding. At wedding itself, guests were forced to surrender any equipment which could be used to take photos. However someone surreptitiously took photos which were then published by Hello! magazine. OK! also hurriedly published its official photos on same day. OK! sued Hello! for breach of confidence.
Majority (speech of Lord Hoffmann)
· D had committed breach of confidence in relation to C.
· Any photos of the wedding as an eventtaken by anyone were commercially confidential information
Ø andnot merely the photos OK! was authorised to publish
· Art 8 is completely irrelevant to OK!’s claim
Ø i.e. HRA 1998 does not apply in respect of commercially sensitive information
Did OK have standing to sue?
· Is necessary to keep one’s eye firmly on the money.
· ThereforeOK! have right to enforce obligation of confidence
Ø OK! paid £1 million for benefit of obligation of confidence on those at wedding
Ø Thus obligation of confidence was imposed for benefit of both Douglas’ and OK!
Ø No reason why OK! should not get benefit of that obligation
Loss of confidentiality?
· Photos are confidentialeven though Douglas’ did not intend to keep them secret
Ø if information is worth so much that OK! was willing to pay to be only source of publication, is no reason why OK! cannot protect against D’s publication
· Moreover photos are still confidential despite fact that D has put images of wedding in public domain
Ø information protected here was any photos of wedding as a visual spectacle
Ø and not information about what happened at wedding.
Lord Walker (dissenting)
· Fact that stringent security procedures were in place does not in itself make wedding ‘confidential’
· Therefore obligation of confidence did not extend to any photos of wedding as an occasion
· Law of confidence should not extend to protection of exclusivity in a spectacle
Lord Nicholls (dissenting)
· D’s publication has caused a loss of secrecy.
· This is because there is no new information contained in D’s photos not present in C’s photos.
· Obligation of confidence did not extend to any photos of wedding as an occasion