Critically evaluate the effect of the decision of the House of Lords in Douglas and others v Hello!

Ltd and others (No 3) [2007] UKHL 21 on the law of breach of confidence

A common law tort known as breach of confidence enables people or organizations to file a civil lawsuit
to preserve confidential or commercially important information. Breach of confidence involve with the
breachingof duty of confidentiality. Duty of confidentiality arises from commercial, private and state
information.The purpose of the law is to stop those who have received confidential information from
abusing it to their advantage. The case of Douglas and others v Hello! Ltd and others (No 3) 1deals with
monetary remedies for breach of confidentiality in privacy.The house of lords adopted a different
standard in this case, that is the commercial value of information can protectable.The principle of this
case was the Hellow magazine as the defendant was bound by the duty of confidence regarding the
unauthorized photographs of the wedding of celebrity couple Michael Douglas and Catherine Zeta-Jones
that they received from a freelancer while the exclusive rights were given to OK magazine to publish the
wedding photographs. The photographs of Hellow’s possession were different from the initial and
official photographs of OK’s which contained confidential information with a commercial value
therefore, the courts decided the information was protectable 2.

The decision of the case by appealing was granted in favour of Douglases and OK Magazine on the
grounds that the Douglases and OK Magazine were entitled to a commercialized confidence over the
wedding photographs since they were private and so secret, despite the fact that word of the wedding
was widely disseminated. It was discovered that Hello Magazine's intervention caused financial damage,
making it an intentional conduct3. The pictures showed the necessity for anonymity because they had
business worth. The secrecy that Hello Magazine and the unauthorized photographer intended to
sabotage were entitled to protection by the Douglases. Because of this, even though OK published the
images before Hello, it does not follow that they are now in the public domain and are not confidential.
Each picture would be viewed as a unique piece of information that OK had the sole right to publish.
Each picture was designed to transmit the visual information of their wedding. This right was
intentionally violated. The Douglases had a right to get compensation for Hello Magazine’s interference
and breach of confidence4.

The House of Lords had to determine whether the wedding photos accepted as confidential information
in order to decide if OK had an enforceable claim based on breach of confidence.The final question was
whether Hello had violated that confidence by publishing the unauthorized photographs contained
private information that had a commercial value or if OK had already made the information public,
destroying its confidentiality, if the photographs were confidential and if OK profited from that

1
[2007] UKHL 21
2
Tim press, Intellectual Property Concentrate (4th edn, Oxford University Press 2019) 91
3
Douglas v Hello! Ltd < https://www.cms-lawnow.com/ealerts/2005/05/douglas-v-hello-ltd> accessed 25
June 2022
4
Christopher Hutchings, Selling privacy: Douglas v Hello! delivers a mixed message,
https://uk.practicallaw.thomsonreuters.com/0-200-9541?transitionType=Default&contextData=
(sc.Default)&firstPage=true accessed on 25 June 2022
confidence.Despite the new facts established, the applicable principles had already been determined in
the most prominent UK cases involving breaches of confidence such as Coco v AN Clark (Engineers)
Ltd5and Attorney General v Guardian Newspapers Limited (No 2) 6 7.

OK’s interest in preserving the confidentiality of the wedding photos was one that the law would uphold
in the absence of any conceptual or policy arguments opposing protection. This is a logical outcome
from a business perspective.It represents what happens in real-world business situations,
where magazines and newspapers are willing to shell out a lot of cash to have the exclusive
right to print stories about public figures. The final decision guarantees the protection of the
commercial value of exclusive deals for the media and celebrities.

Although Douglas case involved in information that would have also been protected under the
privacy, the case was argued regarding the confidentiality rather than the privacy. Therefore,
the major impact of the decision of Douglas case was on the protectable confidential
information. This decision confirmed the previous case law. Shelley Films Ltd v Rex Features Ltd8
for the fact that trespassers were under a duty of confidence where someone entered private
property despite warning signs that such entry was prohibited in order to gather information.
And in Thomas v Pearce9 where recipient of confidential information isbound by duty of
confidence where he either knew information was confidential or was intentionallyunsighted
about confidential nature of information.

The law for breach of confidence has developed an approach to judge information as to its
quality and worthiness for protection, so insignificant or imitative information will not be
protected, even if confidential. In the case De Maudsley v Palumbo10 the court held that the simple
ideas also possible to be protected if it is sufficiently defined and distinct. In Fraser v. Thames Television
Ltd11, the courts decided while the concept for a television program cannot be protected by copyright
unless it is recorded somehow and the person to whom the idea is disclosed can be barred from making
that idea public or using it for profit under a breach of confidence action. These two cases elaborated
which supported the effect of the decision which emerged under Douglas case is grounded with strong
considerations.

The difficulty evolved in Douglas decision was the House of Lords emphasized that additional
photos of the same scene from the celebrity couple’s wedding still contained protectable
information even after some of the photos from same event were published. Further, the
courts focused on the view of the majority that as the information had a certain commercial
value which was enough to be protected than the views of minority that objected on what was
protected was merely the unimportantcharacteristics of the photography.

5
[1969] RPC 41
6
[1990] 1 AC 109
7
Black, G 2007, ‘OK! for Some: Douglas v Hello! in the House of Lords’, Edinburgh Law Review, vol. 11,
no. 3, pp. 402-07. https://doi.org/10.3366/elr.2007.11.3.402
8
[1994] EMLR 134
9
[2000] FSR 718
10
[1996] FSR 447
11
[1984] 1 QB 44
The other important effect evolved from this decision was if readers or fanslovegossips of
celebrities, then it is good to provide a privilege which canpromotes celebrities to provide it.

It was coming into light that the requirement to protect the right to privacy under Article 8 of
the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950
(ECHR) regarding the breach of confidence action 12. Even in Campbell v MGN Ltd13, the
liberalexpansion of this current cause of action to safeguard privacy interests was accepted by
the House of Lords. Inits decision, the House of Lords agreedthat the Mirror could be found
liable for breach of confidence as a resultof its conduct in publishing
secretlyphotographedshots ofNaomi Campbell when she was leaving ananonymous narcotics
meeting. The House of Lords was able to reference a growing body of case law in which breach
of confidence was used to defend privacy interests and expressly approved of utilizing it to do
so.

In conclusion, the decision of this case was developed a separate area in right to privacy and
confidentiality of information.The information must appear to have a confidential quality in
order to be regarded confidential or private. Receiver’s perception on information is a good
indicator.Due to the potential consequences of the material being made public, in a case like
this, it would be treated obviously as confidential information.

Despite the transient nature of the proceedings, the ruling established some significant
guidelines for the use of breach of confidence in the future and the relationship of theHuman
Rights Act 1998 and breach of confidence. After theKaye v Robertson14which the court was
failed to provide remedy to the victim under breach of privacy,Douglas v Hello15, is the first
major case dealing with media interference after theHuman Rights Act 1998 came into force.It
can be concluded that thereis now a powerfully arguable case that have a right of privacy
whichthe UK law will today accept and protect confidentialitywhere applicable.

The Douglases were successful in the event of publishing paparazzi-style photos since the
wedding celebration was arranged as a private function on privately owned property. It is
uncertain if the UK courts follow the European Court of Justice’s lead in the Princess Caroline’s
case von Hannover v Germany16, Here, it was discovered that the German media had violated
her privacy even when she was in a public setting 17. This major expansion of the right to privacy
is yet to be recognized by the UK courts.
12
NormannWitzleb, Monetary remedies for breachof confidence in privacy cases, Legal Studies, Vol. 27 No.
3, September 2007, pp. 430–464. DOI: 10.1111/j.1748-121X.2007.00058.x
13
[2004] UKHL 22, [2004] 2 AC 457
14
[1991] FSR 62
15
[2007] UKHL 21
16
[2004] EMLR 379; (2005) 40 EHRR 1
17
von Hannover v Germany (No 2), Global Freedom of Expression, Colombia University<
https://globalfreedomofexpression.columbia.edu/cases/von-hannover-v-germany-no-2/>