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Douglas v Hello! in the Court of Appeal and the House of Lords, when read together.1 This may initially seem contradictory, but it is arguably no different from the rights that can be exercised by holders of intellectual property or more traditional property. The owner of a copyright work or of a plot of land is entitled to prevent other parties using the copyright work or the land without his consent, but he is also entitled, simultaneously, to grant rights to authorised parties to use the copyright work or the plot of land, on terms acceptable to him. In effect, this is what the Douglases were able to do, by restricting access to their wedding: photographs of the day then became both private and confidential. Treatment of personal information as a trade secret then becomes no different from other trade secrets or from copyright or land. As Lord Hoffmann stated: 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. 2 Their Lordships were keen to emphasise that this judgment does not (and should not be seen to) create an image right or an unorthodox quasi-intellectual property right.3 Importantly, although it now provides an answer in cases where personal information is exploited, it is not concerned with defamation or passing off or copyright infringement, or any of the other assorted doctrines that celebrities may try to rely upon in securing their personality rights.

The Court of Appeals decision was therefore appealed and eventually overturned only to the extent of OK!s rights, and it remains the highest decision in relation to the Douglases privacy rights.
2 3

[2007] UKHL 21 at para 124, per Lord Hoffmann.

See, for example, para 124, per Lord Hoffmann, Lord Walker at paras 285, 287 and 297, and Baroness Hale at para 307.

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In particular, the factual situation and the legal basis of the case were entirely unrelated to the other leading celebrity case, Irvine v Talksport, which concerned false endorsement, rather than misuse of personal information. There is therefore still much uncertainty in the area of publicity and personality. Even those principles that can be derived from this case are not applicable throughout the UK, but only under English law: whether the Scots courts would follow suit remains to be seen. Although this summary attempts to present the law in a reasonably coherent state, it is necessary to emphasise that the judgments of the Court of Appeal and the House of Lords are lengthy. Not only was the House of Lords divided 3-2 in favour of OK!, it is also difficult to find much internal consistency between the judgments of the three Lords who formed the majority. Despite Baroness Hales concern to provide a united front, thereby providing less grist to the advocates and academics mills,4 there is certainly a difference in focus between all their Lordships, creating the impression that OK!s victory was secured by the slimmest of margins. Another seemingly contradiction involving the House of lords decision in breach of confidence is the case of Von Hannover v Germany 2004] EMLR 379; (2005) 40 EHRR 1 the facts are that On 15 December 1999 the Federal Constitutional Court of Germany granted Princess Caroline of Monaco an injunction restraining the publication of photographs in which she appeared with her children. It did so on the ground that their need for protection of their intimacy was greater than that of adults. However, the German Court considered that the applicant, who was undeniably a contemporary public figure, had to tolerate the publication of photographs of herself in a public place, even if they showed her in scenes from her daily life rather than engaged in her
4

[2007] UKHL 21, at para 303 per Baroness Hale of Richmond

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official duties. The Court referred in that connection to the freedom of the press and to the publics legitimate interest in knowing how such a person generally behaved in public. Although freedom of expression extended to the publication of photographs, the rights and reputation of others took on particular importance as the photographs did not concern the dissemination of ideas, but of images containing very personal or even intimate information about an individual. Paparazzi photographs were often taken in a climate of continual harassment which induced in the person concerned a very strong sense of intrusion into their private life or even of persecution. The decisive factor in balancing Articles 8 and 10 lay in the contribution that the photographs and articles made to a debate of general interest. The general public did not have a legitimate interest in knowing the Applicants whereabouts or how she behaved generally in her private life even if she appeared in places that were not private. Everyone, including celebrities, had a legitimate expectation that his or her private life would be protected. There had been a violation of Article 8. This is another significant decision from the ECHR on privacy. It stands as a further example of the difficulties of the English Court's attempt to "shoe-horn" the law of privacy into the law of breach of confidence. Further, the ECHR's insistence that the value of the speech must be taken into account in the balancing of Article 10 and Article 8 rights potentially further threatens the typical sort of celebrity kiss 'n' tell story which forms the staple diet of many tabloids and celebrity magazines. The ECHR's decision that the House of Lords' finding of breach of confidence in respect of the disputed material did not violate MGN's right to freedom of expression may disappoint newspapers, since it suggests that the breadth of editorial discretion with regard to publication of information alleged to be private is not unlimited, even where certain private information is accepted as being in the public domain so that it was legitimately the subject of public debate. However, it is difficult to draw any concrete conclusions from the decision since much turned on the specific facts of the case, including that the undisputed material had been published and was regarded by the House

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of Lords majority as sufficient to give the story credibility, and that the disputed material concerned intimate and private information, and could affect Ms Campbell's recovery. Another reason why it is difficult to draw any concrete principles from the case, beyond those already established in ECHR case law, is that the ECHR did not get involved in any detailed dissection or analysis of the House of Lord's judgments, or superimposition of its own reasoning. Instead it confined itself to exercising its supervisory jurisdiction, specifically by examining whether the majority had applied standards to the facts that were in conformity with the principles embodied in Article 10 of the Convention allowing for a margin of appreciation accorded to the national courts. Indeed, Judge Bjrgvinsson, partly dissenting, criticised the majority of the ECHR saying that in the decision it "simply defers to the assessment made by the domestic courts", an approach which he contrasts with: "the 'strict scrutiny' that is usually found in this Court's case law in balancing Article 8 and Article 10 rights where the Court regularly makes its own independent assessment of the facts involved and of the application of the relevant principles to those facts and it frequently substitutes its own views for those of the domestic courts. It has been the consistent approach of this Court that it is not enough, in itself, that the domestic courts consider the relevant principles; they must also be applied correctly". Judge Bjrgvinsson cites Von Hannover as an example of a case in which the court did this. He said that he would have agreed with the minority in the House of Lords that publication of the disputed material did not infringe privacy, since it merely continued the original legitimate story, so that the interference with MGN's Article 10 rights could not be justified. Perhaps because of this alleged lack of independent assessment by the ECHR, and because of the narrow confines of the issue before the

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ECHR, the decision does not appear to shed any significant light on the issue of whether the House of Lords' findings in Campbell are consistent with those in Von Hannover. This is a much debated question, since the ECHR in Von Hannover did appear to take a more expansive view of what constitutes "private life" than the court in Campbell, in particular in relation to when photographs taken in public would give rise to a reasonable expectation of privacy: the House of Lords did not regard photographs of Ms Campbell taken in a public street as being inherently private information, only finding that the photographs constituted private information on the facts because they were connected to her medical condition. The ECHR did not specifically comment on the status of photographs taken in public. However, the ECHR did comment more generally that in making a distinction between private information which Ms Campbell had made public and which was therefore legitimately a subject of public debate, and additional information which she had not made public, the House of Lords had reflected the distinction made by the ECHR in Von Hannover. It also said that it found the House of Lords' reasoning convincing. Perhaps, by implication, this may suggest that the ECHR does not consider the House of Lords' decision in Campbell to be inconsistent with Von Hannover in any significant way.