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Zeta-Jones result: Will courts create a privacy law?
Michael Douglas and Catherine Zeta-Jones won a High Court ruling on Friday that said Hello! magazine breached rights of commercial confidence by publishing photographs of the Hollywood golden couple’s wedding; but the court found that there was no invasion of privacy.
Justice Lindsay warned, however, that current laws are inadequate and that "if Parliament does not step in then the Courts will be obliged to."
The wedding took place in November 2000. The couple sold the exclusive photo rights to the event to OK! magazine for £1 million, although they retained control over the selection of pictures which would appear in OK!
A paparazzo intruder gained access to the wedding by bribing staff and surreptitiously took relatively poor photographs which were then bought for publication in OK!’s rival magazine, Hello!. The Douglases and OK! initially obtained a court order to restrain publication; but the Court of Appeal acceded to Hello!’s arguments and lifted the injunction, leaving Douglases to claim in damages. Hello! published the unauthorised photographs on the same day as OK!’s authorised coverage.
Breach of confidence
Justice Lindsay reasoned that the Douglases had a valuable trade asset, “a commodity the value of which depended, in part at least, upon its content at first being kept secret and then of its being made public in ways controlled by Miss Zeta-Jones and Mr Douglas for the benefit of them and of [the publishers of OK!].”
He continued, “So far as concerns OK!, the right to exclusivity of photographic coverage of the wedding was, in contrast with nature of the confidence as to [the Douglases], even more plainly a right in the nature of a trade secret."
Justice Lindsay took the view that Hello! did not act in good faith. The publishers did not commission the unauthorised photographs, but had indicated to paparazzi in advance that they would pay well for photographs and they knew the reputation of the paparazzi for being able to intrude.
“They knew that OK! had an exclusive contract; as persons long engaged in the relevant trade, they knew what sort of provisions any such contract would include and that it would include provisions intended to preclude intrusion and unauthorised photography. Particularly would that be so where, as they knew, a very considerable sum would have had to have been paid for the exclusive rights which had been obtained.”
The privacy angle
It was argued in court that the UK has a law of privacy by way of the Convention on Human Rights and the Human Rights Act coupled with decisions of the European Court of Human Rights. But Justice Lindsay disagreed, giving five reasons for his decision:
- Case law did not support its existence.
- One case that did support its existence depended, in Lindsays opinion, “on our law otherwise being so inadequate in relation to the protection and enforcement of individual rights to private and family life as to fall short of compliance with the Convention, the Human Rights Act and the requirements of decisions of the ECHR.”
But even if such an argument were made, it does not point to any need for the creation of new law in areas in which protection and enforcement are already available – and he pointed to the Douglases protection under the law of confidence as evidence that no such hole exists in English law.
- A privacy law is a matter for Parliament and “a judge should therefore be chary of doing that which is better done by Parliament.” He added, “That Parliament has failed so far to grasp the nettle does not prove that it will not have to be grasped in the future.”
He referred to a recent judgment against the UK by the European Court of Human Rights involving a Mr Peck whose attempted suicide was caught on CCTV and broadcast on TV. Justice Lindsay said it shows that “in circumstances where the law of confidence did not operate our domestic law has already been held to be inadequate.”
“That inadequacy will have to be made good and if Parliament does not step in then the Courts will be obliged to. Further development by the Courts may merely be awaiting the first post-Human Rights Act case where neither the law of confidence nor any other domestic law protects an individual who deserves protection.
"A glance at a crystal ball of, so to speak, only a low wattage suggests that if Parliament does not act soon the less satisfactory course, of the Courts creating the law bit by bit at the expense of litigants and with inevitable delays and uncertainty, will be thrust upon the judiciary. But that will only happen when a case arises in which the existing law of confidence gives no or inadequate protection; this case now before me is not such a case and there is therefore no need for me to attempt to construct a law of privacy and, that being so, it would be wrong of me to attempt to do so.
- He quoted from another English decision: “It is most unlikely that any purpose will be served by a Judge seeking to decide whether there exists a due cause of action in tort which protects privacy.” The ruling by Lord Woolf adds that, “In the great majority of situations, if not all situations, where the protection of privacy is justified, relating to events after the Human Rights Act 1998 came into force, an action for breach of confidence now will, where this is appropriate, provide the necessary protection.”
- ”Finally, it is not been (sic) suggested that, even were there to be a law of privacy, the Douglases would be able to make any recovery greater than that which is open to them under the law of confidence as I have held it to be.”
He concluded, “For those reasons I say nothing further as to any law of privacy.”
The full judgment is on the Court Service's web site.
See also: CCTV footage of suicide attempt violates human rights, OUT-LAW News, 03/02/2003
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