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OK! must repay £1m in fight over pictures
Clare Dyer, legal editor
Thursday May 19, 2005
OK! magazine must pay back more than £1m in damages won from its rival Hello! over "spoiler" wedding pictures of Catherine Zeta-Jones and Michael Douglas, three appeal court judges ruled yesterday.
In a judgment which media lawyers said would make it impossible for newspapers and magazines to protect their scoops, the court overturned the 2003 high court judgment in OK!'s favour.
The judges ruled that Hello! had no liability to OK! for interfering with its exclusive by publishing snatched photographs by a paparazzo who infiltrated the celebrity couple's top-security wedding in November 2000.
The judges held that the courts have a duty to protect privacy interests, following a ruling by the European court of human rights over snatched photographs of Princess Caroline of Monaco last year.
The original high court judgment against Hello! came after a six-week hearing in 2003 at which Ms Zeta-Jones told how she felt "devastated, shocked and appalled" when she realised unauthorised photographers had gatecrashed her wedding at New York's Plaza Hotel.
She said that she and her husband had signed the deal with OK! to publish their wedding photos after turning down a higher offer from Hello!
The appeal court judges, headed by the master of the rolls, Lord Phillips, held that the Douglases had a right to keep private those details of their wedding which did not feature in the photographs chosen by them for publication.
Celebrities had the right to make money out of publicising private information about themselves, including photographs of a private occasion, while keeping other areas out of the public eye, the judges ruled. Lord Phillips said: "These [Hello!] photographs invaded the area of privacy which the Douglases had chosen to retain."
But it was the Douglases, and not OK!, who had the right to protect this privacy, he said.
It was not property which could be transferred to someone else, and so the high court ruling which concluded that Hello! was liable to OK! as well as to the Douglases was wrong.
OK! had also argued that Hello! should be held liable on the grounds of conspiracy to injure its business.
But the appeal court judges upheld the original high court ruling that Hello! was not liable on these grounds because it had no intention to hurt OK!'s sales, only to boost its own.
Because the appeal court allowed Hello!'s appeal, OK!'s publishers, Northern and Shell, will have to pay back the damages of £1,033,156 awarded by the high court in November 2003, plus £1m in costs. They will also be liable for much of Hello!'s appeal costs, estimated at more than £1m.
Northern and Shell said in a statement: "This decision will impact on all publishers with exclusive rights as it means rivals will be free to run spoilers with no redress in law. OK! will therefore be appealing this judgment to the House of Lords."
While upholding the high court's ruling that publication of the unauthorised photographs breached the Douglases' privacy, the appeal court rejected their plea for an increase in their £14,750 damages.
However, the judges ruled that an injunction obtained by the couple to stop Hello! publishing the pictures should not have been lifted by the court of appeal in November 2000 and publication should never have gone ahead.
Lord Phillips said the case had been decided before the Princess Caroline ruling and before the judgment of the House of Lords in the case brought by the model Naomi Campbell against Mirror Group Newspapers over a photograph of her leaving a Narcotics Anonymous meeting. Had the judges been able to consider those decisions, they would have concluded that the Douglases had a "virtually unanswerable" case for an injunction, he added.
The media lawyer Mark Stephens described the ruling as a watershed but said the case should go on to the Lords. "The lifeblood of the media is scoops and exclusives, and effectively what they [the judges] have said is that you can't buy a scoop or an exclusive.
"If you take away the scoops and exclusives side of the economic argument, then effectively the ability to convey ordinary general news is diminished and we have a less vibrant media."
Chris Hutchings, a partner in M Law, Hello!'s solicitors, said: "OK! has spoiled many of Hello!'s great exclusives, including Gloria Hunniford's wedding. Hello! didn't dream of complaining.
"The way they see it is if they have an exclusive and other people snatch six grainy pictures it doesn't really harm your exclusive.
"There's evidence that it increases public interest in the publisher that has the exclusive."
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Comment and analysis
16.02.2004: Roy Greenslade: Whose side is the PCC on?
28.06.2004: Duncan Lamont: Is this the end of the paparazzi?
22.03.2004: Roy Greenslade: Long lenses, hard hearts
26.01.2004: Roy Greenslade: Do these people have a right to privacy?
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21.04.2004: Matt Wells: If parliament does not act, the judges will
Privacy and the general public
06.11.2003: PCC receives Daily Record complaint
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30.04.2003: New law could stop 'naming and shaming' by press
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MediaGuardian.co.uk special reports
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