Douglas v Hello [2008] 1 AC 1

• 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. 

• Held:

Majority (speech of Lord Hoffmann)

• Defendant had committed breach of confidence in relation to Claimant.

• Any photos of the wedding as an event taken by anyone were commercially confidential information

  • And not merely the photos OK! was authorised to publish

• Article 8 is completely irrelevant to OK!’s claim

  • 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.

• Therefore OK! have right to enforce obligation of confidence

  • OK! paid £1 million for benefit of obligation of confidence on those at wedding, thus obligation of confidence was imposed for benefit of both Douglas’ and OK!

  • No reason why OK! should not get benefit of that obligation

Loss of confidentiality?

• Photos are confidential even though Douglas’ did not intend to keep them secret

  • If information is worth so much that OK! was willing to pay to be only source of publication, there is no reason why OK! cannot protect against Defendant’s publication

• Moreover photos are still confidential despite fact that Defendant has put images of wedding in public domain

  • Information protected here was any photos of wedding as a visual spectacle 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)

• Defendant’s publication has caused a loss of secrecy.

• This is because there is no new information contained in Defendant’s photos not present in Claimant’s photos.

• Obligation of confidence did not extend to any photos of wedding as an occasion