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Wedding Hello Magazine
This case concerns the sale of wedding photos by the well known celebrity couple, Michael Douglas and Catherine Zeta-Jones. The couple signed an exclusive deal with Hello magazine who were to have sole rites to publish their wedding photographs. A photographer managed to encroach on the wedding celebrations and take illicit photographs which he then sold to Hello magazine, who published the wedding photographs simultaneously with the authorised photographs published by OK. Guests at the Douglases wedding had each signed an agreement undertaking not to take any photographs and the case centres around whether a position of confidentiality could include illicitly taken photographs published by a third party, namely Hello magazine.
The distaste referred to by Lord Hoffman relates to the celebrity world where personal extents such as weddings are sold to the highest bidder and the publicity sought by such celebrities who also seem to crave privacy.
However the rule of law applies to everyone within the remit of the courts including celebrities and publishing magazines who help perpetuate the notion of celebrity.
The claimants claimed breach of confidence amongst other things which amounted to seeing if the law of confidence could be used as a tool to protect commercial agreements.
Get help with your essay from our expert essay writers...The House of Lords had firstly to consider the criteria for breach of confidence as laid down in CoCo v AN Clarke (Engineers) Ltd. These three criteria are that the information itself must have "the necessary quality of confidence about it"; that information must have been imparted in circumstances imposing an obligation of confidence and lastly there must be an unauthorised use of that information to the detriment of the party communicating it. The majority agreed that the information was capable of being protected by confidentiality because it was information of commercial value over which the Douglases had sufficient control by insisting that each guest signed a confidentiality agreement which enabled them to impose an obligation of confidence. Lord Hoffman agreed with Lindsay J in the earlier Court of Appeal judgment who identified information as being the photographic images of the wedding rather than information about the wedding in general and these photographs were confidential information in the sense that none were publicly available. The second criteria was satisfied because the Douglases emphasised that no one at the wedding was to take any photographs and the third criteria was met because the use of that information was to the detriment of OK. Lord Hoffman said that: "The fact that the information happens to have been about the personal life of the Douglases is irrelevant. It could have been about anything that a newspaper was willing to pay for. What matters is that the Douglases, by the way they arranged their wedding, were in a position to impose an obligation of confidence. They were in control of the information". He continued "Where an individual is in a position to control personal information, such as images of an event that can be kept secret from the outside world then he will be able to treat that information as a "conventional" trade secret and afford it protection using the law of confidence.
The court applied the test set down by the House of Lords in Campbell v MGN where photographs of the wedding plainly portrayed aspects of the Douglases private life and fell within the protection of the law of confidentiality, as extended to cover private or personal information .
There appears to be no reason why in principle equity should not protect the opportunity from confidential information in the nature of a trade secret and a case that support this is Shelley Films Ltd v Rex Features . Basically where an individual has at his disposal information which he has created or which is private personal and to which he can restrict and deny access to third parties, and he intends to profit commercially by publishing that information, then a third party who is aware or ought to be aware of these matters and has knowingly obtained the information without authority will be in breach of duty if he uses or publishes the information to the detriment of the owner.
Their Lordships were however keen to emphasise that the judgment does not create an image right or an unorthodox quasi-intellectual property right
Bibliography.
Ahmad, S and Kirsop, J "Keeping an eye on the money: third party exclusives after Douglas v Hello" available at: http://www.jiplp.oxfordjournals.org/cgi/content/abstract/2/10/655
Black, G "Douglas v Hello! - An OK! result", (2007) 4:2 SCRIPTed page: Available at: http://www.law.ed.ac.uk/ahrc/script-ed/vol4-2/editorial.asp >
"Douglas v Hello Magazine" May 2 2007 available at:< http://www.ipsofactoJ.com/international/index.htm [2007] Part 5 Case 3 HL]
Hanson, N Douglas v Hello - new 'image right' via the back door?" Available at: http://www.creativematch.co.uk/viewnews/?94205
McDonald, N "Douglas v Hello!: an extension to the law of confidentiality" available at: http://www.brownejacobson.com/publications/publications/legal_updates/ip_update___dec_2007/douglas_v_hello_.aspx.
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