## Facts

- Before their November 2000 wedding at the Plaza Hotel in New York, Michael Douglas and Catherine Zeta‑Jones agreed with Northern & Shell plc (publisher of *OK!* magazine) that *OK!* would have the exclusive right, for a fee, to publish selected wedding photographs taken by approved photographers and approved by the couple.
- To keep the wedding photographs exclusive, Douglas and Zeta‑Jones arranged strict controls: no media access, confidentiality agreements for vendors, and requests (and measures) aimed at preventing guests and staff from taking photographs.
- Despite these measures, a paparazzo infiltrated the wedding and took unauthorised photographs.
- Those unauthorised photographs were sold for publication in *Hello!* magazine (and connected parties), which published them.
- Douglas, Zeta‑Jones, and Northern & Shell sued for breach of confidence (and related claims). At trial, Lindsay J found liability and awarded damages, including a substantial award to Northern & Shell.
- *Hello!* and associated defendants appealed to the Court of Appeal. Northern & Shell also pursued claims framed in economic torts (including unlawful interference and conspiracy), which were addressed on appeal.

## Issues

1. Whether the unauthorised wedding photographs constituted “private information” protectable by the law of confidence, even though the claimants had planned commercial publication of authorised photographs.
2. Whether Northern & Shell (*OK!*) had its own, enforceable right in confidence against *Hello!* based on an alleged transferable “commercial confidence” in the wedding photographs.
3. How damages should be approached for wrongful publication of private information by photographs, including a notional licence fee and the impact of subsequent publications on loss and quantification.
4. Whether *Hello!* was liable to Northern & Shell for economic torts (including unlawful interference with business and unlawful means conspiracy) based on procuring and publishing the unauthorised photographs.

## Decision

- The Court of Appeal upheld the Douglases’ claim in breach of confidence, treating the unauthorised wedding photographs as private information obtained and used in circumstances importing an obligation of confidence.
- The court rejected the argument that the Douglases’ commercial arrangement for authorised publication meant that confidentiality (and the protection of private information) was surrendered as to unauthorised photographs.
- The court allowed *Hello!*’s appeal to the extent it set aside Northern & Shell’s separate claim in confidence based on a standalone, transferable “commercial confidence” in the photographs.
- The court rejected Northern & Shell’s reliance on economic torts (including unlawful interference and conspiracy), holding that the strict requirements of those torts were not satisfied on the facts found.
- The court reviewed the trial judge’s approach to damages and limited recovery to loss properly attributable to the actionable misuse of the confidential/private information, rather than treating the episode as creating an open-ended right to recover all downstream market consequences.

## Legal Principles

- The modern action for breach of confidence protects “private information,” and photographs can convey private information capable of protection, depending on context and the circumstances in which they were taken and obtained.
- A claimant may retain a right to control unauthorised publication of private wedding images even where authorised images are intended for sale; selective, controlled disclosure does not automatically extinguish confidentiality in other material.
- Liability in confidence turns on whether the defendant knew or ought to have known the information was private and obtained/used in circumstances that made publication a misuse of that information.
- The law of confidence does not automatically create a freely transferable, property-like right in information enabling a third party (such as a publisher) to sue on a broad “commercial confidence” theory divorced from the original subject’s privacy interest.
- In assessing damages for misuse of private information/confidence, courts may use a notional licence fee where appropriate, but recovery must be tied to the wrong proved and to loss that is sufficiently connected to the defendant’s publication.
- Economic torts such as unlawful interference with business and unlawful means conspiracy have demanding elements (including intention and “unlawful means” directed in the required way); they are not a general substitute for failed proprietary or contractual theories.

## Conclusion

The Court of Appeal treated the unauthorised wedding photographs as private information protected by breach of confidence and upheld the Douglases’ entitlement to relief, but it overturned the trial judge’s acceptance of *OK!*’s separate “commercial confidence” claim and rejected *OK!*’s economic tort claims, while tightening the approach to damages so that recovery matched the actionable misuse proved.


Douglas v. Hello! Ltd, EWCA Civ 595, QB 125 (2000)