Hello? OK! (page xvi, paperback preface)

The magazine that bought exclusive rights to publish photographs of the wedding of Catherine Zeta-Jones and Michael Douglas has won the right to damages from the rival publication that printed paparazzi “spoiler” pictures.
The ruling will mean greater protection for newspaper scoops and “buy-ups”.
By a majority of three to two, OK! won an appeal to the House of Lords against an earlier ruling in favour of Hello! . The law lords reinstated a decision of the High Court in 2003 that Hello! should pay OK! more than £1 million for the loss of potential sales.
It is more than six years since OK! agreed to pay the Hollywood couple £1 million for coverage of their wedding in New York, only to find that Hello! had published secretly-taken pictures. All guests had been told to leave their cameras at home and OK! argued that its commercial rights were protected by the judge-made law of confidence.
Two years ago, the Court of Appeal ruled that buying authorised pictures did not give OK! the right to prevent other publications from carrying snatched shots.
But Lord Hoffmann, who gave the leading judgment today, said Mr Justice Lindsay had been right to award OK! damages.
OK! had paid for the “obligation of confidence imposed on all those present at the wedding in respect of any photographs of the wedding,” he said. There was no reason why the magazine should not have the benefit of that obligation, he added.
Supported by Lady Hale and Lord Brown, the law lord stressed that the appeal was not concerned with the protection of privacy. The Douglases themselves were not involved in the appeal and the fact that the “information” happened to be about their private life was irrelevant, he added.
Lord Hoffmann said that the two lords in the minority, Lord Nicholls and Lord Walker, were troubled by the fact that the images in question were intended to be published by OK!.
“But I see no reason why there should not be an obligation of confidence for the purpose of enabling someone to be the only source of publication if that is something worth paying for.
“Why should a newspaper not be entitled to impose confidentiality on its journalists, sub-editors and so forth to whom it communicates information about some scoop which it intends to publish next day?”
That did not prevent publication by someone who received the information other than under an obligation of confidence, or where there might be a public interest in publication.
“Some may view with distaste a world in which information about the events of a wedding ... should be sold in the market in the same way as information about how to make a better mousetrap.
“But being a celebrity or publishing a celebrity magazine are lawful trades and I see no reason why they should be outlawed from such protection as the law of confidence may offer.”
However, Lord Nicholls, one of the two minority judges, said the unapproved pictures contained nothing not included in the approved photographs and so could not amount to “confidential” information.
Once the approved pictures were published, “publication of the unapproved pictures was not a breach of confidence”.
Lord Walker, who would also have dismissed OK!’s appeal, said the law of confidentiality should not be used to protect exclusivity in a spectacle. That would be stretching the law of confidence from what he regarded as its proper function — “in this commercial world, the protection of trade secrets”. Disagreeing with Lord Hoffmann, he said the confidentiality of any information must depend on its nature, not its market value.

Posted at May 2, 2007 12:10 PM