Data Protection: a Privacy Law by any other Name?

Profession:Herbert Smith

Unless you have spent the last few days on a desert island, you will be aware that the judgment in the case brought by Michael Douglas and Catherine Zeta-Jones against Hello! has, like their OK! Magazine wedding exclusive, now been widely publicised (Douglas and Others v Hello! And Others [2003] EWHC 786).

Case Comment

The Douglases and the publishers of OK! Magazine won their breach of confidence claim against Hello! for publication of surreptitiously-taken photographs of the Douglases' New York wedding. One aspect of the case which has received less attention is the fact that the Douglases were also awarded compensation for damage and distress under the Data Protection Act 1998 (the "Act"). The level of damages under the Act is expected to be fixed at a subsequent hearing but is described in the judgment as "nominal".

For data privacy commentators the subsidiary role given to the Act is a little disappointing since, in some respects, the Act provides more versatile 'privacy' protection than the law of confidence; certainly the Act is capable of providing redress in circumstances where no duty of confidence arises.

The Data Protection Act Analysis

The court held that the unauthorised wedding pictures were personal data, that the Hello! defendants were data controllers and that therefore the publication of the pictures in England was processing by Hello! which was bound by the Act's requirements.

In his judgment Mr Justice Lindsay stated "when a data controller is responsible for the publication of hard copies [i.e., the Hello! magazines] that reproduce data that has previously been processed by means of equipment operating automatically, the publication forms part of the process and falls within the scope of the Act".

Hello! argued that their publication of the unauthorised photographs fell within the wide journalism exemption under section 32 (recently deployed successfully against Naomi Campbell in the Court of Appeal - Campbell v MGN Ltd [2002] EWCA Civ. No. 1373 - click here for the Data Privacy Newsflash on this case on 17 October 2002). This was roundly rejected as the Judge found no credible evidence that Hello! had the necessary belief that publication was in the public interest, particularly given the photographs were obtained by a trespassing paparazzo and Hello! knew OK! was about to publish a wedding exclusive. Mr Justice Lindsay commented "[t]hat the public would be interested is not to be confused with there being a...

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