Michael, Catherine, Gloria and the “P” word
by Brendan Wright |
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The date: Saturday, 18 November 2000
The time: 7.30 pm (Eastern Standard Time)
The place: The ballroom of the Plaza Hotel, New York City, USA |
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The guests are beginning to arrive at the wedding of film stars Michael Douglas and Catherine Zeta-Jones. It’s going to be a big one. The enormity of the event has triggered a media frenzy. Every media organisation wants pictures of the big day. Their readers demand it. But the couple have disappointed everybody except OK! magazine, to whom they’ve sold the exclusive rights to publish pictures of the wedding and the reception. So only the readers of OK! will be able to experience the full spectacle: the entertainers, the music, the very elaborate wedding cake. And the guests. In all, 350 people have been invited: friends, family and celebrities. They have all been given coded entry cards to ensure that no unwanted visitors sneak in. They have all been politely told that photography will be forbidden, and they will all be politely searched by security personnel for hidden cameras. During the course of the evening security will politely confiscate six cameras and destroy the films. But somehow a crafty photographer manages to evade security and secretly snap some grainy pictures: the bride walking down the aisle; the bride eating some wedding cake; the bride playfully threatening the groom with the cake knife. He slips out into the night … and by the end of the next day he has agreed to sell six pictures to Hello! Magazine - OK!’s bitter, deadly, rivals—for a cool £125,000. |
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The date: Wednesday, 22 November 2000
The time: 2.00 p m (Greenwich Mean Time)
The place: The third floor of the offices of the Law Reports, Chancery Lane, London, England |
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People are beginning to return to the office after lunch. In my case, it was a big one (roast beef at Middle Temple). I’ve got that afternoon feeling, the mid-week blues. I’ve spent the morning following proceedings in the Queen’s Bench Division, but there isn’t anything exciting going on today. Maybe tomorrow. I’ve been a law reporter for three years and reported over 20 cases for the Weekly Law Reports, many of them interesting, but nothing big yet. And then the phone rings. I happen to be the nearest, so I answer. It turns out that a reporter is needed to cover a case which has been listed at short notice to be heard in the Court of Appeal. Apparently Michael Douglas and Catherine Zeta-Jones got married at the weekend. Someone took some photos of the wedding without their consent and they’ve got an injunction to prevent the publication of the pictures in Hello! magazine. Hello! have appealed and the appeal is being heard this afternoon. That sounds exciting to me - I’ll do it!
So I hurry to Court 71 where counsel and solicitors are assembling. Sadly, Michael and Catherine can’t be there. But I’m more impressed by the legal minds that will be hearing the case: Lord Justice Brooke, Lord Justice Sedley and Lord Justice Keene. The word is that this could be a landmark case for the law of breach of confidence—maybe a new right of privacy will be created. What could be more exciting for a young law reporter than to be an eye-witness to an important development in the English common law?
Henry Carr QC, counsel for Hello! magazine, gets to his feet. He urges their Lordships not to make any extension to the law of breach of confidence. Breach of confidence is all about protecting information, he says. The guests weren’t prohibited from describing or drawing what they saw at the wedding so the pictures, which contain the same information, don’t contain anything confidential. He also urges their Lordships not to “kill” issue 639 of Hello! magazine—because that is what they would be doing by allowing the injunction to continue until trial. If the injunction is not lifted Hello! will have lost the opportunity to publish the pictures forever—no one wants pictures of last year’s wedding, however glamorous. They should be allowed to publish, and if at trial the court decides that the pictures were confidential after all, the claimants can be adequately compensated by damages. The appeal is adjourned to the next day. |
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The date: Thursday, 23 November 2000
The time: 5.00 pm
The place: Court 71, the Royal Courts of Justice, London, England |
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After a long day of further legal submissions their Lordships have just retired to consider their decision. I have been scribbling hard all day, taking a detailed note of counsel’s arguments, which have been stimulating and lively. Take the controversy over “the Gloria Hunniford incident”. Back in 1998, OK! published unauthorised pictures of Gloria Hunniford’s wedding when Hello! had an exclusive picture deal with her. Hello! argue that OK! can’t now complain when they do the same thing, and produce copies of the offending copy of OK! to show just how reprehensible OK!’s behaviour was. The three bewigged judges, solemnly studying copies of the magazine, with Gloria Hunniford’s wedding on the cover, could be a row of elderly ladies having their hair done. But they seem unimpressed by the “this is the pot calling the kettle black” approach.
Michael Tugendhat QC, counsel for the Douglases and OK!, says that it is not necessary to identify confidential information in the photograph: what the claimants are seeking to protect is the confidential image. He says that there is such a thing as a right to privacy, which is protected by the law of breach of confidence. The law does protect the dignity of the person, not just state secrets. He argues that the right to freedom of expression cannot trump the right to respect for private life. The defendants should not be allowed to publish, because damages could never be sufficient compensation for someone whose right to privacy has been breached.
“Court rise!” The usher announces that their Lordships are coming back into court. Everyone gets to their feet, bowing to the three judges as they sit down. There is tension in the air. This is it. Lord Justice Brooke gives the court’s decision: the appeal is allowed and the injunction is set aside for reasons which will be given in due course. Hello! have won and issue 639 is saved. But why? We will have to wait to find out. |
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The date: Thursday, 21 December 2000
The time: 11.00 am
The place: Court 67, the Royal Courts of Justice, London, England |
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This is an important day for me. The Court of Appeal is handing down its judgment in Douglas v Hello! Ltd. We’ve known the result for a month now—the injunction was lifted and the pictures were published—but today the court will give its reasons for its decision. What it says is likely to be important, and I will be responsible for reporting the judgment.
In court, copies of the judgments are handed out to journalists and law reporters. I grab my copy and take it off to the library to study it. Lord Justice Sedley’s judgment seems to be the most interesting—he really gets to grips with the question of whether there is now a right of privacy in English law. At para 110 he declares that “it can be said with confidence that the law recognises and will appropriately protect a right of personal privacy”. The law can protect those who have been subjected to an unwanted intrusion into their personal lives without having to construct an artificial relationship of confidentiality between intruder and victim. But on this occasion, he says, the claimants have traded their privacy to OK! It is no more than a commodity in OK!’s hands. The pictures can be published and if, at trial, it is found that they breached the claimants’ right to privacy, damages will be sufficient compensation.
By the end of the day I have written a short law report which will be published in The Times. Over the next few weeks (after a short break for Christmas) I will write a report for the Weekly Law Reports [2001] 2 WLR 992 and later a Law Report [2001] QB 967 containing my note of counsel’s legal arguments. (Although there is sadly no mention of Gloria Hunniford.) Within a couple of weeks the decision in Douglas v Hello! Ltd has been relied on to grant worldwide injunctions preventing the press from exposing the new identities of the two boys who killed James Bulger: see Venables v News Group Newspapers Ltd [2001] Fam 430. It looks like this is going to be an influential case, and I am proud to have produced the law reports that will surely be read by many people. |
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The date: Saturday, 18 November 2006
The time: 2.30 pm
The place: My house |
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I’m sitting at home typing this article on my laptop, when I realise that it was exactly six years ago today, on another Saturday, that Michael Douglas and Catherine Zeta-Jones got married. Unbeknown to them, an uninvited photographer was at their wedding. And it all, very quickly, led to a Court of Appeal decision which turned out to be the first really important case I ever reported.
Since then, the right of privacy has had mixed fortunes. We’ve had A v B plc [2002] QB 195, where the Court of Appeal held that a footballer’s right to keep his affairs with lap dancers private was outweighed by a tabloid newspaper’s right to make them public. We’ve had Wainwright v Home Office [2004] 2 AC 406, where the House of Lords held that there was no tort of invasion of privacy which could avail someone strip-searched during a prison visit. We’ve had Campbell v MGN Ltd [2004] 2 AC 457, where the House of Lords decided that although there was no freestanding tort of invasion of privacy, breach of confidence did include unjustified invasions of privacy. And of course we’ve had Douglas v Hello! Ltd (No 3) [2006] QB 125, where the Court of Appeal upheld the damages award made to the Douglases at trial for breach of confidence. Lord Justice Sedley, writing extra-judicially, has said that today “privacy is entitled to the protection of the law in everything but name”; we’re just not allowed to speak the “P” word: see his article “Towards a right to privacy”, London Review of Books, 8 June 2006.
In another piece of synchronicity, the Douglas case finally reaches the House of Lords in two days’ time: Monday, 20 November 2006. But anyone hoping that their Lordships might say something new about the right to privacy are going to be disappointed. The appeal relates solely to OK!’s claims against Hello! for loss of profits. So their Lordships will not be uttering the “P” word just yet. But in time maybe a case will turn up that provokes them to do so. |
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