June 2005
When it comes to the media's love and war over celebrity scoops, spoilers are fair game
The Court of Appeal overturned OK! magazine's £1 million victory against its rival magazine Hello! last week over the publication of celebrity wedding photos.
Hello! Magazine published unauthorised photographs of the wedding of Zeta-Jones and Douglas when it was OK! that had the exclusive licence from the couple to photograph the whole private affair. Hello! bought the photos from a paparazzi intruder at the wedding, published them and had to pay OK! £1 million pounds for the privilege, for breaching OK!'s rights of commercial confidence.
However, last week the Court of Appeal overturned this award, holding that Zeta-Jones and Douglas had a right of confidentiality in respect of the published photos but that Ok! did not. The court said that rights in confidential or private information, such as wedding photos, which are capable of commercial exploitation but are protected only by the laws of privacy and confidence, are not actually transferable. OK! only had a licence to publish the photographs and copyright was retained by the couple, so it was held that the magazine did not actually have the right to sue Hello!
BRIFFA Comment:
In the context of privacy claims, the courts have turned to the law of confidence and privacy rights under Article 8 of the European Convention on Human Rights for assistance. They have also stretched to moulding the specific claim into other heads of action such as breach of copyright, breach of data protection rights and defamation. A regulatory regime, as an alternative route to litigation, may also exist through (for example Ofcom) providing sufficient remedy to the complainant.
Although the couple won their case on confidentiality, Hello!'s appeal was allowed as the confidentiality was not extended to OK! In this case, the judges revisited the question on the couple's privacy and fully acknowledged that individuals do have a recognisable right to privacy, whatever way it may be cloaked. However, you cannot rely on invasion of privacy or breach of confidentiality of another as the basis for losing out to competitors over the commercial exploitation of such invasion or breach. In OK!'s further claim for economic loss, the court concluded that you would have to deliberately set out to harm your rival and not to do so incidentally even if that was devious. On the evidence, Hello! had set out to boost its own claims, not to damage those of OK! The purchase by OK! of the authorised photographs did not confer on them any legal right to prevent the publication by others of other unauthorised photographs.
When it comes to the media's love and war over celebrity scoops, spoilers run by rival publications, seeking to reduce the impact of an exclusive story are fair game. Publishers paying big money for exclusive rights will have little or no legal protection or redress. However, on the other side of the coin, recent judgements have come to the aid of celebrities who seek to protect their privacy, although damages have generally tended to been rather low.