Breach of confidence

Douglas and others v Hello! Ltd and others CA TLR 24 May; NLJ 27 May

The European Court of Human Rights has recognised an obligation of Member States to protect one individual from an unjustified invasion of private life by another individual and an obligation on the courts of Member States to interpret legislation in a way which would achieve that result. The Government did not intend to introduce legislation in relation to this area of the law but anticipated that judges would develop the law appropriately, having regard to the European Convention on Human Rights. In so far as private information is concerned the court was required to adopt, as its vehicle, the cause of action formerly described as breach of confidence. The court should, in so far as it could, develop the action for breach of confidence so as to give effect to both articles 8 and 10, the rights of privacy and the freedom of expression, in the Convention. It was unsatisfactory that the courts should be required to shoehorn within the cause of action of breach of confidence claims for publication of unauthorised photographs of a private occasion. The court dismissed the defendants’ appeals against the award of damages to the claimants arising out of the defendants’ unauthorised taking of photographs at the claimants’ wedding. The first element of breach of confidence is that the information has to be of a confidential nature as opposed to being public property and public knowledge. Once information is in the public domain, it was no longer confidential or entitled to the protection of the law of confidence. The same could generally be true of private information of a personal nature. The same would not necessarily be true of photographs. It was quite wrong to suppose that a person who authorised publication of selected personal photographs taken on a private occasion would not reasonably feel distress at the publication of unauthorised photographs taken on the same occasion. To the extent that an individual authorised photographs taken on a private occasion to be made public, the potential for distress at the publication of other, unauthorised photographs taken on the same occasion, would be reduced and that would be relevant when considering the amount of damages. The agreement that authorised photographs could be published would not, however, provide a defence to a claim, brought under the law of confidence for the publication of the unauthorised photographs. The Douglases were entitled to complain about the unauthorised photographs as infringing their privacy on the ground that those detracted from the favourable picture presented by the authorised photographs and caused consequent distress. The court accordingly upheld the award of £3,750 damages to each of the Douglases. The other head of damages awarded to the Douglases was based on the assertion that they had a commercial interest in making public information about their wedding which they were entitled to protect. Recognition of the right of a celebrity to make money out of publicising private information about himself, including his photographs on a private occasion, broke new ground. There was no reason in principle why equity should not protect the opportunity to profit from confidential information about oneself in the same circumstances that it protected the opportunity to profit from confidential information in the nature of a trade secret. There was cogent authority for the proposition that equity would protect trade secrets that had been divulged in breach of a confidential relationship. The Douglases had taken steps intended to ensure that their wedding was a private occasion and that no unauthorised photographs were taken or published. Hello! knew that. Hello! also knew that the Douglases expected commercially to exploit their private wedding by the publication of authorised photographs. Hello! deliberately obtained photographs that they knew were unauthorised and published them to the detriment of the Douglases. That rendered them liable for breach of confidence under English law. However, the publishers of Hello! were not liable to the other publishers, OK!, who had paid for exclusive rights to publish authorised photographs of the wedding. Those rights were not protected by the law of confidence. The other publishers’ claim for damages based on economic torts similarly failed. OK! had failed to establish that Hello! had the requisite intention to establish the tort of unlawful interference with business or conspiracy to injure by unlawful means. If the court had held that OK! had satisfied the high test of intention, it would have held that the test of unlawful means was satisfied.