Douglases and OK! v Hello

Profession:Herbert Smith
 
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Ever since the Douglases won their interim injunction against Hello! and then saw it discharged by the Court of Appeal in December 2000, the privacy genie has been well and truly out of the bottle. This is a fascinating case to lawyers and laymen alike.

As commercial lawyers, the issue of perhaps the greatest interest is "once it has been 'commoditised', how far can privacy still be protected?". As the law currently stands, it is clear that any protection available to the couple is more likely to come from the law of confidence than from a new, independent right of privacy.

To succeed with breach of confidence they will need to show as the first step that the photographer who sold the pictures to Hello! owed a duty of confidence to the Douglases which he breached. This is where questions of "conscience" and "equity" arise. A factor which troubled the Court of Appeal was the possibility that the photographer (whose identity had not then been established) might not have been a guest (who would have owed a duty) but could have been an intruder "with whom no relationship of trust or confidence had been established".

It should be borne in mind that stringent measures were taken by the couple to prevent unauthorised photographs from being taken at their wedding in New York (e.g. confiscation of cameras from guests, signs stating no cameras or videos were permitted, confidentiality agreements signed by all the staff and extensive security measures and checks). This begs the question: what more could they have done to retain control over their images? There is a distinct possibility in the light of recent cases (including Flitcroft) that the court may find that, even if he was an intruder, the...

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