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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Douglas & Anor v Northern And Shell Plc & Anor [2000] EWCA Civ 353 (21 December 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/353.html
Cite as: [2002] 1 FCR 289, [2001] UKHRR 223, [2001] QB 967, [2001] 2 All ER 289, [2000] EWCA Civ 353, 9 BHRC 543, [2001] 1 FLR 982, [2001] EMLR 9, [2001] FSR 40, [2001] 2 WLR 992, [2001] HRLR 26
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JISCBAILII_CASE_IMMIGRATION
Case No: Proforma
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Hunt J)
Royal Courts of Justice
Strand, London,
WC2A 2LL
Thursday 21st December 2000
LORD JUSTICE BROOKE
LORD JUSTICE SEDLEY
and
LORD JUSTICE KEENE
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MICHAEL DOUGLAS CATHERINE ZETA-JONES NORTHERN & SHELL plc |
Respondents/ Claimants | |
- and - |
||
HELLO! LIMITED |
Appellants/ Defendants |
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Michael Tugendhat QC and David Sherborne (instructed by Theodore Goddard for the Respondents)
Henry Carr QC and Giles Fernando (instructed by Charles Russell for the Appellants)
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Judgment
As Approved by the Court
Crown Copyright ©
1. On 22nd and 23rd November 2000 we heard an appeal by the defendants Hello! Ltd against an injunction granted by Hunt J on 21st November restraining them until trial or further order from publishing or further publishing photographs of the first and second claimants Michael Douglas and Catherine Zeta-Jones taken at their wedding at the Plaza Hotel New York on 18th-19th November 2000. The judge's order also granted the claimants other relief, the precise details of which are immaterial for the purposes of this judgment.
2. We discharged the injunction at the end of the hearing of the appeal and said that we would give our reasons for allowing the appeal in due course.
3. The defendants are the proprietors of Hello! magazine. The third claimants Northern & Shell plc are the proprietors of OK! magazine. These two magazines are rivals in the same market. At the time we heard the appeal the most recent circulation figures from the Audit Bureau of Circulation ("ABC") showed that they were neck and neck, with Hello! showing an average weekly circulation of 458,663, and OK! lagging slightly behind at 455,162. Mr Ashford, who is the editorial director of OK!, has told the court that the ABC rating at the end of the ABC year has an enormous effect on the rates which magazines can charge advertisers over the next six months, so that the magazine which has the highest rating has a significant advantage over its rival(s). Mr Ashford added that the Douglas wedding, for which OK! had secured exclusive rights, was the last important feature before the end of the ABC year.
4. Three matters need to be made clear at the outset of this judgment. The first is that this is not the trial of the action. The court is not concerned to decide whether, as the claimants contend, Hello! has acted unlawfully. If at the trial it is held that Hello! has acted unlawfully, it is likely that it will have to pay the claimants very substantial sums of money, whether as damages or as a consequence of any account they may be ordered to make in relation to all the profits it has received as a result of its unlawful acts. Since it decided to proceed with the publication of Issue 639 of its magazine after we discharged the injunction, and after it had had the opportunity of reading all the evidence which the claimants placed before the court, it could have no possible excuse for its behaviour if it were held that it has acted unlawfully.
5. We are not concerned with matters of this kind. Our sole concern is to decide whether in accordance with well established principles an injunction restraining this publication should be continued in force until trial, thereby in effect "killing" this weekly issue of Hello!.
6. Secondly, this judgment is given in the context of litigation conducted at great speed. Mr Maninder Gill, who is the third claimants' head of legal affairs, first heard at 7.30pm on the evening of Monday 20th November that Hello! were likely to publish the disputed photographs the following morning. Leading counsel obtained injunctive relief from Buckley J over the telephone later that evening. The hearing before Hunt J took place the following day, when three witness statements on behalf of the claimants (Martin Kramer, Maninder Gill and Martin Ellice) and two witness statements on behalf of the defendants (Sally Amanda Cartwright and Timothy Moore) were placed before the court. The defendants immediately appealed to a two-judge division of this court (which was unable to agree) and when we started to hear the appeal the following day we decided that it would be fair to allow both sides to adduce further evidence on the clear understanding that we realised that the other side had had no opportunity, or no sufficient opportunity, to rebut any of this new evidence if it had wished to do so. We therefore admitted four more witness statements on behalf of the claimants (Stanley Sydney Myerson, Paul Anderson, Paul Ashford and Martin Smith) and three more witness statements on behalf of the defendants (Sally Amanda Cartwright 2nd, Christopher Hutchings and Maria-José Doughty).
7. The third preliminary matter is that even if we had not decided to admit all this new evidence, we would have had to exercise our discretion afresh on the hearing of this appeal because we have virtually no idea what matters the judge took into account and what he did not take into account when he exercised his discretion to continue the injunction. After a long hearing we were told that he simply said that he had no doubt that these images were confidential and that the defendants were in breach of confidence, and probably contract and malicious falsehood as well, and that he would continue Buckley J's order. The defendants appealed against his order on nine separate grounds, all of which appear to me well founded. The essence of their complaint is set out in the first ground of appeal:
"(1) The learned Judge failed to give any or sufficient reasons in support of his decision to continue the injunction granted without notice by Mr Justice Buckley on Monday 20 November."
8. This court has said repeatedly in recent years that the giving of reasons forms an important part of the judicial function. See, in particular, Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, 381-2. Like the defendants, we do not know why the judge decided that the nine photographs of which the claimants make complaint were without doubt published in breach of confidence. We do not know why he concluded that the photographs contained information possessing the necessary quality of confidence. We do not know what he identified as the necessary elements of malicious falsehood or the tort of interference with contractual relations, or why he concluded that those elements would in each case probably be proved by the claimants at trial.
9. There is no indication that he weighed the injustice likely to be caused to the defendants in continuing the injunction against the injustice likely to be caused to the claimants if he refused to continue it. Nor did he say whether he gave any or any proper weight to the fact that the continuation of the injunction was to cause the defendants to be unable to distribute almost the entirety of one of its weekly issues. Because he failed in all these respects, this court, as I have said, has had to exercise its own discretion in deciding whether or not to continue the interim injunction granted by Buckley J. I wish to stress that a judge does not have to give long reasons. The error made by Hunt J was that for all practical purposes he did not give any reasons at all, with the result that neither an appellate court nor the parties are able to understand precisely why he exercised his discretion in the way he did.
10. I turn now to the evidence. It is common ground that Hello! is published in the London area on Tuesday of each week and in other parts of the country on Wednesdays. OK! follows in each respect three days later. While OK! complain that Hello! behaved improperly on the occasion which is at the centre of this appeal, Hello! adduced evidence which purported to show that this was merely a case of the pot calling the kettle black, and that OK! had been no stranger to similar spoiling tactics in the past. The evidence on these matters must be approached with care, prepared as it was on each side with great speed and not tested in cross-examination. None of it was before the judge. It ran along the following lines.
11. In September 1998 Hello! paid a very substantial sum for the right to publish an exclusive feature about the wedding of Gloria Hunniford, the television personality. Its agreement with Miss Hunniford contained a confidentiality clause which had the purpose of achieving full exclusive coverage for Hello!
12. On that occasion OK! published its Issue 128 a few days before Hello! published its wedding photographs. OK! magazine that week bore the banners "OK! ALWAYS FIRST FOR WEDDINGS" and "GLORIA HUNNIFORD'S EXCLUSIVE WEDDING DAY" on its cover, which also boasted "COMPLETE COVERAGE & BEAUTIFUL PICTURES INSIDE". Six pages of wedding photographs appeared on pages 42-47. Hello! complain that these pictures were obviously not authorised by Hello! or by the married couple, and that they must have been obtained in similar circumstances (ie surreptitiously) to those of which OK! make complaint in this action.
13. In its response OK! does not suggest that it did not know that Hello! had exclusive rights to the Hunniford wedding coverage. It contents itself with saying that there had been no international publicity identifying the possessor of the exclusive media rights in advance of the Hunniford wedding. There was no security operation equivalent to that conducted at the Douglas wedding. The guests at the Hunniford wedding were issued with disposable cameras and encouraged to take photographs by the bride and groom, who had agreed to pose for pictures on public ground in their wedding attire. OK! also says that it understands that the sums paid for the right of coverage for the Hunniford wedding were far smaller. It adds that neither the bride nor groom, nor to the best of its recollection, Hello!, ever complained, and that it has had subsequent business relationships with both bride and groom.
14. After giving three other examples of spoiling tactics by OK! (which OK! confesses and avoids, largely on the basis that it did nothing unlawful), Hello! makes two other substantive complaints about the conduct of OK! in relation to wedding photographs. The first relates to the wedding of Santa Palmer-Tomkinson in November 1998. OK! claimed it had an exclusive interview and pictures inside the synagogue, thereby giving the impression that it was covering the wedding exclusively, shortly before Hello! provided its own extensive coverage, whereas all that OK! had secured had been an exclusive interview with the Rabbi who had conducted the wedding.
15. The other complaint made by Hello! related to the wedding of Brad Pitt and Jennifer Aniston in August 2000. An official wedding photograph appeared on the cover of OK! Issue No 225, accompanied by a big banner proclaiming "Inside the most unique wedding ever. World Exclusive Interview and Pictures. Only in the UK!" In fact the article in OK! about that wedding merely showed pictures that were available to every publication in the open market, whereas the "World Exclusive" referred to a different wedding, a small photograph of which appeared in the top right hand corner of the cover. OK!, in its response, maintained, unconvincingly to my mind, that there ought not to have been any confusion.
16. None of this evidence was before the judge. At the very least, it is hard to see how OK! could have sanctioned a claim for damages against Hello! for malicious falsehood, based on the two words "Exclusive Photographs" on the cover when this evidence tends to show that OK! itself was willing to give a very elastic meaning to the word "Exclusive" when it was indulging in its own spoiling tactics.
17. OK! bases its claim in the present action on the rights it secured under an agreement it made with Mr Douglas and Ms Zeta-Jones on 10th November 2000, eight days before the wedding. It undertook to pay a very large sum of money to each of them in respect of these rights, payable not later than one week before the wedding. OK! asserted that Hello! offered three times the eventual contract sum for rights to exclusive coverage, but that the couple trusted OK! to project only the images they wanted projected to the public. Hello! does not dispute that it tendered for the rights, although we were told that it did dispute that it had offered three times as much as OK!. At all events, this evidence shows that Hello! knew that exclusive rights were to be granted for coverage of the wedding, and that it did not secure them themselves.
18. The 10th November agreement, in summary, provided that the third claimants were granted exclusive rights for a nine-month period to publish colour photographs of the wedding taken by a photographer hired by Mr Douglas and Ms Zeta-Jones, and to publish an article, including a story and photographs, about the wedding. It was also granted similar rights for a similar period in respect of the consent to use Mr Douglas's and Ms Zeta-Jones's name, voice, signature, photograph or likeness in connection with the wedding. The couple retained wide rights of approval in relation to anything that was to be published and the identity of any other publications in which published material might appear. Mr Douglas and Ms Zeta-Jones undertook to use their best efforts to ensure that:
"no other media (including but not limited to photographers, television crews or journalists) shall be permitted access to the Wedding, and that no guests or anyone else present at the Wedding (including staff at the venues) shall be allowed to take photographs."
19. If any infringing material was used by a third party, OK! undertook to pursue all necessary legal action to cause such infringement to cease, if requested to do so. The obligation to provide security rested with Mr Douglas and Ms Zeta-Jones. There was also a profit-sharing agreement in relation to the exploitation of the rights once OK! had recouped its original investment.
20. OK! adduced evidence to the effect that it had been widely reported in the international media before the event that there would be security at the wedding, and that no one would be allowed to photograph or videotape anything at the wedding or the wedding reception. It was also made clear in the media coverage that the news media (including the paparazzi tabloids) would not be permitted to gain access to the wedding or reception so that they could not take any photographs of the couple, or any of the members of their family, or the other wedding guests. Mr Ashford described a sophisticated large-scale operation, planned with military precision, to try to ensure that no other media reporting took place.
21. Mr Kramer, the claimants' solicitor, has exhibited to his witness statement a memorandum dated 20th November 2000 prepared by Los Angeles attorneys for Mr Douglas and Ms Zeta-Jones. This four-page document, headed "Facts supporting claim for injunction", professes to set out some of the facts "which would, hopefully, support a claim for preliminary and permanent injunctions under UK law". Attached to this memorandum is a confidentiality agreement. This is to be signed by an "EMPLOYEE" and its preamble states that the undertakings as to confidentiality (which include an undertaking not to take photographs) are given "in consideration for my employment to provide services to the Douglas/Zeta-Jones family, and as a term and condition of such employment".
22. In the memorandum it was explained that the confidentiality agreements prohibited each service company and each vendor which signed them (including each of their respective employees) from keeping, disclosing, using or selling any "photograph, film, videotape, etc" which were obtained at the wedding reception. The agreements also specifically provided that any such disclosure would constitute a material breach of them, and might also constitute a breach of trust, breach of fiduciary duty and an invasion of privacy, which would cause irreparable harm to Michael and Catherine and that, therefore, they would have the right to seek and obtain an injunction to prevent any such disclosure. The attorneys therefore suggested that if any person hired to render services in connection with the wedding or the reception and any person employed by one of the vendors, was the person who took the unauthorised photographs and/or took the videotape from which the unauthorised images were taken, their actions in (a) smuggling a camera or videotape machine into the reception, (b) covertly and secretly taking photographs, or making a videotape during the reception, (c) then making copies of them, (d) disclosing them to others, and (e) selling and attempting to sell those images to the media, would constitute material breaches of the express provisions of the Confidentiality Agreement.
23. They also said that all the guests who were invited to the wedding or the reception received with their invitation a separate written notice which stated: "We would appreciate no photography or video devices at the ceremony or reception." Moreover, in order for a guest to gain access to both the wedding ceremony and the wedding reception, he or she had to go through a secure entrance or a check point which was maintained by a professional security service, and by others. There was said to be a notice posted at the entrance which announced a similar message: "no photography or video devices at the ceremony or reception". Each guest who went into the wedding ceremony and into the ballroom at the Plaza Hotel where the wedding reception was held, was visually checked to make certain that he or she did not have any cameras, videotape machines or any other audio or video or recording devices and, where there was any suspicious circumstance, security personnel used high-tech equipment to make certain that no camera or videotape devices were smuggled into the wedding reception. Any guest who had, mistakenly, brought a camera or videotape machine with them had to turn it in or check it before entering, in order to be permitted to attend the wedding and/or the reception.
24. The attorneys added that if anyone rendering services, or working with a vendor, at the reception, had any need, in connection with their employment, to enter the room where the reception was being held, or any related private areas, they were checked to make certain that they did not have any camera, video tape machine or other audio or video recording or transmitting device, in non-compliance with the confidentiality agreement signed by their employer.
25. They also said that during the wedding reception, the security personnel looked for anyone who appeared to have, or might have, a camera or videotape machine. Security personnel saw someone with a camera on about six occasions during the reception. They immediately confiscated the camera and took the film out of it, thereby exposing the film and destroying any photographs that might have been taken. They then either escorted the person out of the reception, or if a wedding guest was involved, detained the camera until the guest was ready to leave the reception. Although a large number of security staff were monitoring the reception for this purpose, none of them reported having seen anyone else taking photographs or doing any videotaping at the reception.
26. It was also said that there was no way of gaining access to the ballroom of the Plaza Hotel without going through the security check point. As a further security measure to try to keep uninvited people from crashing the wedding or reception, security passes were issued to the invited guests within 24 hours before the ceremony and each invited guest was given a specially made gold pin to wear. No one was allowed to enter the ballroom unless he or she was an invited guest or someone working at the wedding reception, and no one could see into the ballroom from outside, or take photographs or make a videotape from outside the ballroom, since there was no visual access.
27. The attorneys ended their memorandum by saying that in these circumstances it was obvious that everyone in all the categories they had mentioned was made fully aware of the prohibition against photographic equipment and agreed not to take cameras, video tape machines or other visual or audio recording devices into the wedding or the wedding reception. They suggested that it necessarily followed that every worker and every guest agreed not to take any photographs or videotape during the wedding or reception and also agreed that they would not disclose, sell, or otherwise try to commercially exploit any photographs, videotapes, or any other unauthorised recording.
28. The wedding celebrations began at 7.30pm New York time (12.30am GMT) on the evening of Saturday 18th November. At 7.30pm on Monday evening, 20th November, Ms Zeta-Jones telephoned the third claimants' head of legal affairs in London. She sounded upset and told him that a magazine was about to publish unauthorised photographs taken at their wedding. An interim injunction was obtained from Buckley J, as I have said, on the telephone later that evening. Although we have not been furnished with the reasons he gave for granting the injunction, it appears that he was told that OK! had received information earlier that day from more than one source that photos were being offered for sale; that nine low resolution photos of the wedding had been faxed to OK! from Holland; that OK! had been told that the photos were by Phil Ramey, a well known Californian paparazzo; that copies of Hello! were already in the United Kingdom with a photo of the wedding on the front and would be distributed very shortly; that a distributor had told Mr Martin Townsend (of OK!) that copies were coming in through Stansted for delivery to a warehouse at Borehamwood; and that efforts, which were continuing, had been made to contact the editor of Hello! after a security guard who answered the phone at their premises had been unable to help.
29. In addition to adducing copies of the memorandum and the agreements to which I have referred, OK! placed before Hunt J the following day witness statements by Mr Maninder Gill and its managing director (Mr Ellice).
30. Mr Maninder Gill said that he believed from his conversation with Ms Zeta-Jones, and from his experience as a media lawyer, that she and her husband were upset at the possible publication of the unauthorised photographs by Hello!. He said that this was because the portrayal of their image in the film and entertainment industry generally was of "incredible importance", as it was to most celebrities. This was because of the inevitable spillover of their persona and public image into their livelihoods. He explained that the demand by producers and directors for the service of actors and actresses was dictated to a large extent by what is commonly termed the "pulling power" of the actor and actresses. Thus in these circumstances, he suggested, Catherine Zeta Jones and Michael Douglas would not only feel violated by an intruder, perhaps motivated by having secured a lucrative contract beforehand, taking surreptitious photographs using what must have been, in light of the highly publicised tight security, a hidden camera, but also by the fact that any unauthorised photographs published would not have been carefully selected from a large number of proof copies as suitable for publication, after careful retouching.
31. Because Ms Zeta-Jones and Mr Douglas trusted OK! to project only the images they wanted to be projected to the public, it was a condition in their agreement with OK! that they would vet the photographs of the wedding to be published by OK! before they were published. Mr Gill explained that the condition that photographs published by magazines such as OK! be carefully selected and approved and retouched before publication, was commonly demanded by celebrities because they were inevitably very anxious about controlling the images of them released to the public. Neither of them would wish to see unflattering, fuzzy photographs of them at their wedding made public. He asserted that the publication of these photographs had caused irreparable harm to them.
32. He added that his company had concluded about £750,000 worth of syndicate deals for the exclusive photographs, and that they had received numerous telephone calls and e-mails from licensees threatening to terminate the licence as a result of these unauthorised photos being published.
33. Mr Ellice for his part gave his reasons for believing that Hello! must have known and expected that it would receive photographs from the wedding, and for strongly suspecting that Hello! must have procured the photographer to act in breach of confidence and take the relevant photographs. His suspicions were based on his intimate involvement in every stage of the print and production process of OK! magazine. The final deadline for sending material to the printers would normally be 4pm on a Tuesday prior to OK! going on sale on a Friday. If OK! sent a late feature early on Wednesday morning for delivery to the wholesalers on a Thursday night, this would present a logistical nightmare, involving an enormous amount of organisation and meticulous pre-planning. This is why he believed that Hello! must have made prior arrangements to organise print machines, transmission, staffing and transportation including, unusually, the use of aircraft to transport the copies from their printer in Spain to the United Kingdom.
34. Instead of reciting the effect of the other evidence before the judge before I describe the further evidence which we decided to admit, it will be much more convenient to set out now the general effect of all the other evidence we received.
35. It appears from the evidence adduced by Hello! that a company called Neneta Overseas Ltd, with an address in the British Virgin Islands, sold the exclusive UK rights in the nine photographs to which the claimants took exception to Hola SA for use in Hello! magazine, pursuant to an agreement it concluded with Mr Sanchez, the proprietor of Hello!, on Sunday 19th November. Mr Sanchez, for his part, has said that he did not commission these photos or finance them or agree a price for them in advance. One of his employees had agreed a price for them on the Sunday as soon as they had been delivered to him that day. He maintained that he merely owned the exclusive rights for publication in the United Kingdom, Spain and France and he denied that he had any agents representing him in the United States. Ms Cartwright, for her part, said that Hello! had no previous knowledge that these pictures were going to be taken until they were offered on the open market around the world on the Sunday. She explained that Hello! was then able to fit them in the magazine which was by then substantially ready.
36. Mr Moore, who is the circulation director of Hello!, said that the print order had been confirmed to the printers in Spain on the Friday, and that the first copies of the magazine traditionally arrived in this country at 7am on the Monday. This issue had been running later than usual. To the best of his knowledge the print run had started on the Sunday, and about a third of the total order had arrived at Stansted on a cargo plane at 4.50pm on the Monday.
37. OK! on the other hand adduced evidence from Mr Paul Anderson, its Photos Editor, who said that he had spoken on the telephone on the Monday with Phil Ramey (see paragraph 28 above) who had told him that it was Mr Sanchez who owned the photos, and that he was acting as Mr Sanchez's agent in the United States. Mr Anderson said that later that evening Mr Ramey told him that he was "pulling" the photos from all the US magazines to which he had distributed them, because it was clear that it was now not worth his while to distribute them in the United States.
38. Mr Anderson said that he believed the disputed photos had been taken by a small camera which was either a digital or an ordinary camera or video camera. Their appearance suggested that the photographer was trying to take the photographs covertly, and they may have been taken with two different types of equipment, either by an amateur photographer or by a professional photographer operating under difficult conditions.
39. The remainder of the evidence related to the damage which each side claimed that it would suffer if the injunction was, alternatively was not, continued. So far as Mr Douglas and Ms Zeta-Jones are concerned, this evidence was largely based on what Mr Maninder Gill told the court in his witness statement (see paragraphs 30 and 31 above). We were also shown a confidential statement of the reasons why the publication of each of these photographs was said to have caused them such damage.
40. OK!, for its part, relied on the evidence about the importance of the ABC rating which I have set out in paragraph 3 of this judgment. This, Mr Ashford said, was even more important than usual because OK! was planning to float on the stock market next year, and the rating would be pivotal in attracting investors. He had anticipated that the circulation of the edition of OK! containing the wedding photographs would be double the usual circulation of the magazine. He believed that this would be no longer possible if Hello! was allowed to publish, because the appetites of non-regular readers would have been sated by seeing these photos. In addition, because of Hello!'s action OK! had been forced to publish an incomplete set of pictures a week earlier than they had planned. OK! was also concerned about the potential loss of the value of the syndication agreements they had secured.
41. Hello!, for its part, described its potential losses, if in effect it "lost" the whole of this issue (as would be inevitable for a weekly magazine if the injunction was continued) under three main headings: the loss of advertising revenue, the loss of readership income, and the damage to its relationship with the news trade.
42. As to the first, Ms Cartwright said that Hello! would have to refund to advertisers the costs they had paid for space in this issue. Two very important advertisers had placed time-sensitive advertisements in this issue, and in a fiercely competitive market she feared that if they let down any of their advertisers it was probable that they would decline to advertise for some time to come. OK! had been trying for some time to make inroads into Hello!'s advertisement sales, and if Issue 639 could not be put on sale, she feared that some advertisers might be so annoyed they would switch to OK! on a long term basis.
43. She was also very concerned about the potential loss of readership if Hello! did not appear that week. It was bought by about 456,000 people every week, a large proportion of whom were regular buyers, and it had a readership of 2.2 million readers every week. She said that any interruption in the publishing schedule could be extremely damaging to reader loyalty, and it could take a considerable time to regain lost readers, as they might feel let down and cheated by the non-appearance of Issue 639. Since Hello! had published regular features about the forthcoming wedding in earlier issues, readers would have been led to expect that the wedding itself would be covered in some way in the week after it took place.
44. So far as relationships with the news trade were concerned, she said that for 12 years Hello! had always been on sale in London on a Tuesday and in the rest of the country on a Wednesday, and the magazine had long-established relationships with 90 wholesale houses and 55,000 retailers. It occupied a premium position on the shelves because it had always been seen to be reliable and profitable, and Ms Cartwright feared that this position would be damaged (to the advantage of OK!) if it was perceived to be unreliable. She feared that if Issue 639 failed to appear, Hello! would suffer a damaging loss of confidence in the eyes of its partners in the news trade.
45. All this evidence was before the judge, but as I have already observed he failed to refer to it at all and we do not know how much weight he attributed to it. It was answered in this court by Mr Myerson, who is joint managing director of OK!. He has been involved in the newspaper and magazine publishing business for 22 years, with particular experience in advertising and sales.
46. Mr Myerson was concerned to discount Ms Cartwright's concerns. He said that Hello! was an important publication in its sector of the market, and represented a major vehicle for advertisers which they would be very reluctant to abandon. He did not believe that they would decide not to advertise in Hello! in future if there was a legal problem which prevented the publication of the issue. He thought that the next issues could be enlarged and that some of the advertising booked into Issue 639 could be moved into a subsequent issue.
47. So far as the feared loss of readers was concerned, he considered it wholly unrealistic of Ms Cartwright to suggest that a loyal reader of Hello! would stop reading the magazine because one issue did not appear. It was the content of a magazine which determined whether or not it attracted readers. Hello! was a strong product with a high profile, and there was in Mr Myerson's view no reason to suppose it would not continue to maintain its current levels of readership simply because it had lost one issue.
48. He adopted a similar attitude towards Ms Cartwright's concerns about Hello!'s relationship with the news trade. He said that from the point of view of the trade Hello! was a high priced premium product with a large volume of sales. It was extremely profitable, and provided that quality was maintained it was wholly unrealistic to suggest that the loss of one issue would irreparably damage its relationships with the news trade.
49. So much for the evidence. I now turn to the question we had to decide, in the exercise of our own discretion (given that we do not know how the judge decided to exercise the discretion vested in him: see paragraphs 7-9 above). If this matter goes forward and the claimants' case succeeds at trial, the bill which Hello! will have to pay is likely to be enormous, but this is a risk it decided to take, with its eyes open, after we discharged the injunction. We had to decide a very different matter, that is to say whether the court should continue the injunction which would prevent over half a million copies of Issue 639 from reaching its readers at all. It goes without saying that this is a case concerned with freedom of expression. Although the right to freedom of expression is not in every case the ace of trumps, it is a powerful card to which the courts of this country must always pay appropriate respect.
50. What then, are the principles which should govern the exercise of our discretion? The House of Lords has laid down a general rule which governs most cases in which a court is invited to grant an interim injunction restraining the defendant until the trial of the action from doing the things of which the claimant makes complaint. See American Cynamid Company v Ethicon Ltd [1975] AC 396. Once a judge has decided that there is a serious issue to be tried, he is required to weigh the respective risks that injustice may result from his deciding one way or the other on necessarily incomplete and untested evidence. On the one hand there is the risk that if the injunction is refused but the claimant succeeds in establishing at the trial his legal right, for the protection of which the injunction had been sought, he may in the meantime have suffered harm and inconvenience for which an award of money can provide no adequate recompense. On the other hand there is the risk that if the injunction is granted but the claimant fails at the trial, the defendant in the meantime may have suffered harm and inconvenience which is similarly irrecompensable. This is what is sometimes described as the balance of convenience.
51. There has always been a category of case in which a more stringent threshold is required. In NWL Ltd v Woods [1979] ICR 867 Lord Diplock identified that type of case in these terms:
"Where ... the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other."
52. Occasionally Parliament intervenes to make clear its wishes in particular contexts. For instance, in the context of trade disputes, Section 17(2) of the Trade Union and Labour Relations Act 1974 provided that if a defendant claimed that he acted in contemplation of furtherance of a trade dispute,
"the court shall, in exercising its discretion whether or not to grant the injunction, have regard to the likelihood of that party's succeeding at the trial of the action in establishing the matter or matters which would ... afford a defence to the action."
53. In NWL Ltd v Woods Ltd Lord Diplock and Lord Fraser of Tullybelton, who formed the majority of the 3-judge Appellate Committee of the House of Lords, rejected a contention that this meant that the court had to have regard to this matter to the exclusion of other matters, or that it was to be treated as of overriding or paramount importance, or given any other special legal status. The likelihood (and the degree of likelihood) of the defendant succeeding in setting up his defence was a factor to which the court had to have regard when determining where the balance of convenience lay. Lord Fraser observed at p 883F that if the court considered that the defendant was virtually certain to establish the defence it would naturally give more weight to this factor than if it considered that the prospect of successfully establishing the defence was doubtful.
54. Parliament resorted to a different drafting technique in Section 12(3) of the Human Rights Act 1998. This sub-section reads:
"No [relief which, if granted, might affect the exercise of the Convention right to freedom of expression] is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed."
I agree with what Keene LJ says about the effect of this statutory provision in paragraphs 150-154 of his judgment, to which I have nothing to add.
55. Needless to say, following Lord Fraser's speech in NWL Ltd v Woods Ltd, if there is a very strong likelihood that the claimant will establish that an Article 10(2) justification will succeed at trial this will represent a powerful reason why the court should exercise its discretion to grant an interim injunction to restrain publication. In the present case Hello! wished to publish in this country over half a million copies of its Issue 639 which it had imported from its printers in Spain. In another case, however, a newspaper might wish to publish a photograph, taken on a private occasion, which it possessed in this country in digital form. In such a case it might run into serious difficulties.
56. These difficulties would arise out of the provisions of the Data Protection Act 1998. This statute was enacted, in part, to implement EU Council Directive 95/46 which was self-avowedly concerned with the protection of an individual's Convention rights to privacy (see paragraphs (2), (10), (11) and (17) of the preamble to the Directive and Article 9 of the Directive itself). It follows that unless the newspaper asserted a Section 32(1)(b) justification (viz that it reasonably believed that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest), a claimant who could show that the photograph had been taken of him on some private occasion without his consent would be able to satisfy a court that it was highly probable that an Article 10(2) justification would succeed at trial (see Data Protection Act 1998, s 4 and Sch 1, Part I para 1(a) and Sch 2). Section 13 of this Act, incidentally, grants an individual a statutory right to compensation for damage (including distress, in certain specified circumstances) against a "data controller" who contravenes any of the requirements of the Act. This entitlement is subject to any of the defences the Act may provide.
57. On the facts of the present case, using the American Cynamid test, there is clearly a serious issue to be tried in relation to the claims made by all three claimants. Although the evidence they adduced is often rather impersonal, and one might reasonably be sceptical about the efficiency of some of the security measures, given that no less than six different cameras were later found in the possession of people who had passed through the security checks, it appears that a real effort was made to inform everyone who entered the relevant parts of the hotel that the occasion had characteristics of confidentiality. In other words, people were being trusted to participate in this private occasion, in whatever role, on the strict understanding that they might not take photographic images of what they saw. There was also evidence to the effect that the images could not have been taken by someone from outside who was not bound by these obligations of confidence.
58. In those circumstances it would certainly be arguable, if the appropriate facts were established at trial, that "unauthorised" images were taken on this private occasion by someone in breach of his or her duty of confidence, and that they therefore constituted "confidential information" as to what was going on at the wedding and the wedding reception. In so far as Mr Douglas and Ms Zeta-Jones have not vested in OK! the right to bring this action to protect the subject-matter of their agreement, they have retained the relevant rights themselves. The claimants have also adduced evidence to the effect that Hello! was on notice that this "information" was confidential, in the sense that the principle of notice was explained by Lord Goff in Attorney-General v Guardian (No 2) [1990] 1 AC 109, 281.
59. I cannot, however, exclude the possibility that the trial judge might find, as Sedley LJ has suggested in paragraph 112 of his judgment, that the photographer was an intruder with whom no relationship of trust or confidence had been established. In that event the court would have to explore the law relating to privacy when it is not bolstered by considerations of confidence.
60. In this context Article 10(2) provides a potential justification for denying the right to freedom of expression not only by restrictions that are necessary "for preventing the disclosure of information received in confidence", but also those that are necessary "for the protection of the reputation or rights of others". On the hypothesis I have suggested in paragraph 59 above, the question would arise whether Mr Douglas and Ms Zeta-Jones had a right to privacy which English law would recognise.
61. It is well known that this court in Kaye v Robertson [1991] FSR 62 said in uncompromising terms that there was no tort of privacy known to English law. In contrast, both academic commentary and extra-judicial commentary by judges over the last ten years have suggested from time to time that a development of the present frontiers of a breach of confidence action could fill the gap in English law which is filled by privacy law in other developed countries. This commentary was given a boost recently by the decision of the European Commission on Human Rights in Earl Spencer and Countess Spencer v the United Kingdom 25 EHRR CD 105, and by the coming into force of the Human Rights Act 1998.
62. I must make it clear that the hearing in our court took place in less than ideal circumstances. This litigation was conducted at such speed that Mr Carr QC was instructed for the defendants for the first time shortly before the hearing before this three-judge court, after Mr Silverleaf QC had represented them at the two hearings the previous day. Neither of them had any opportunity to prepare a written skeleton argument before these hearings, or to consider at leisure the torrent of authority produced by Mr Tugendhat. He for his part had had the advantage, for a hearing in this court which started on Wednesday afternoon, of being instructed late on Monday night, but he was the first to admit to us that his skeleton arguments, which referred to nearly 40 decided cases and a plethora of statutory authority and academic and extra-judicial writings, were derived from databases prepared on some earlier, more relaxed occasion.
63. It follows that we were deprived of the full argument to which we would have been treated if this litigation had not been conducted at such speed. Notwithstanding this handicap, it appears to me that we need to consider counsel's arguments on this point, if only to explore the strength of the claimants' privacy-based case, so far as it adds anything to their confidentiality-based case.
64. English law, as is well known, has been historically based on freedoms, not rights. The difference between freedom-based law and rights-based law was memorably expressed by Lord Goff of Chieveley in the course of his speech in Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 when he said he could see no inconsistency between English law on freedom of speech and Article 10 of the European Convention on Human Rights. He said at p 283F:
"The only difference is that, whereas Article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it."
65. It is against this background of freedom-based law that the law of confidentiality has been developed. For a very long time the judges of the Court of Chancery exercised an equitable jurisdiction to restrain freedom of speech in circumstances in which it would be unconscionable to publish private material. If information is accepted on the basis that it will be kept secret, the recipient's conscience is bound by that confidence, and it will be unconscionable for him to break his duty of confidence by publishing the information to others (see Stephens v Avery [1988] Ch 449, 456). Of course, "there is no confidence as to the disclosure of inequity", and the cases show how, on occasion, the courts were willing to permit publication on that, or other grounds, even though the information to be published was originally given in confidence (see, for example, Fraser v Evans [1969] 1 QB 349, 362; Hubbard v Vosper [1972] 2 QB 84, 95 and 101).
66. This is the origin of the jurisdiction which has been exercised from time to time, when the claimant founded his action on confidence, to restrain the publication of photographs or etchings which contain images of people. In the famous case of Prince Albert's etchings, Lord Cottenham LC said (Prince Albert v Strange (1849) 1 Mac & G 25 at pp 44-5) that the plaintiff's affidavits:
"state distinctly the belief of the Plaintiff, that the catalogue and the descriptive and other remarks therein contained, could not have been compiled or made, except by means of the possession of the several impressions of the said etchings surreptitiously and improperly obtained. To this case no answer is made ... If then, these compositions were kept private, except as to some ... sent to [B] for the purposes of having certain impressions taken, the possession of the Defendant ... must have originated in a breach of trust, confidence, or contract, in [B] or some person in his employ taking more impressions than were ordered, and retaining the extra number ..."
67. In the same way North J gave relief (on the basis of "a gross breach of faith") in Pollard v Photographic Company (1885) 40 Ch D 345 to a lady who commissioned a photographer to take photographs of her for her private use and found to her surprise that the photographer was incorporating her photographic image in Christmas cards for general sale. Again, when the Duchess of Argyll obtained an injunction against her former husband from publishing information about her in breach of the duty of confidence one partner to a marriage (or other intimate relationship) owes to another, Ungoed-Thomas J said of these private relationships in Argyll v Argyll [1967] Ch 302, 329f-330b:
"It ... seems to me that the policy of the law, so far from indicating that communication between husband and wife should be excluded from protection against breaches of confidence given by the court in accordance with Prince Albert v Strange, strongly favours its inclusion, and in view of that policy it can hardly be an objection that such communications are not limited to business matters. Of course, the relationship between husband and wife is a delicate relationship. As Atkin LJ said in the famous passage in Balfour v Balfour [1919] 2 KB 571, 579, at common law in respect of promises between husband and wife ` ... each house is a domain into which the king's writ does not seek to run, and to which his officers do not seek to be admitted'. But the protection of confidential communications between husband and wife is not designed to intrude into this domain but to protect it, not to break their confidential relationship but to encourage and preserve it."
In Michael Barrymore v News Group Newspapers Ltd [1997] FSR 600 Jacob J followed these principles in a case in which a newspaper sought to publish information about features of an intimate homosexual relationship.
68. More recently, outside the domain of private domestic life, Chancery judges have granted claimants injunctions to restrain the publication of photographs taken surreptitiously in circumstances in which the photographer would be taken to have known that the occasion was a private one and the taking of photographs by outsiders was not permitted. In Creation Records Ltd v News Group Newspapers Ltd [1997] EMLR 444 Lloyd J said at p 453:
"On the plaintiff's evidence ... once the shoot was ready to begin, efforts were made to prevent photography both within the roped off area and outside it.
[Counsel for the claimants] says on this evidence [S] must have been aware of the efforts to prevent people taking photographs of the shoot and can only have succeeded in doing so by being surreptitious and far from being as open as he himself deposes. If so it is a clear inference that he acted in this way because he knew otherwise he would be stopped and that, accordingly, he realised that he was not permitted to take photographs of the scene. He must have known, it is said, that the scene was intended to remain unpublished, albeit not entirely secret, and that it was therefore confidential. By evading the security efforts by luck or guile he nevertheless acted in breach of the confidentiality to which the scene was subject. To echo the words of Megarry J, as he then was, in Coco v A N Clark Engineers Ltd [1969] RPC 41, the circumstances were such, he says, that any reasonable man in the shoes of [S] would have realised that on reasonable grounds he was obtaining the information, that is to say the view of the scene, in confidence, at least to the extent that he was obliged by that confidentiality not to photograph the scene.
In principle that seems to me to be an arguable case, though it clearly depends on how the facts turn out."
69. Lloyd J observed that the facts of the earlier case, Shelley Films Ltd v Rex Features Ltd [1994] EMLR 134, were clearer, because in that case there were signs banning photography (although the anonymous photographer was reported as having said that he did not see them), and he was also arguably not lawfully present. He added at p 455:
"Here, while admittedly [S] was lawfully at the hotel and with others was able to gain access to the restricted area and his presence there was tolerated and even the taking of photographs was tolerated before the shoot as such began, the plaintiffs' evidence, if accepted, shows that thereafter a tighter regime of security was imposed as regards preventing photography, the tight ring of security men and minders of which the Sun's first article spoke. It would of course have been clearer if each of the strangers to the shoot who were allowed to stay in the restricted area had been told that they may not take photographs thereafter. But what the plaintiffs' witnesses depose to amounts to much the same as that, although in a more general and less explicit form. I accept also that they were of course allowed to observe the scene and could therefore have gone away and told the world the ingredients of the picture, or even made a sketch of it from memory. But being lawfully there does not mean that they were free to take photographs, and it seems to me that to be able to record it as a photographic image is different in kind, not merely in degree, from being able to relate it verbally or even by way of a sketch. That is above all because it was in photographic form that it was intended to be preserved for the group. It is the photographic record of the scene, the result of the shoot in fact, that was to be confidential."
70. In each of these two cases the judge considered that the balance of convenience favoured the granting of an injunction, and there were no other factors to dissuade him, in the exercise of a jurisdiction created by equity, from taking that course.
71. It is well settled, then, that equity may intervene to prevent the publication of photographic images taken in breach of an obligation of confidence. In other words, if on some private occasion the prospective claimants make it clear, expressly or impliedly, that no photographic images are to be taken of them, then all those who are present will be bound by the obligations of confidence created by their knowledge (or imputed knowledge) of this restriction. English law, however, has not yet been willing to recognise that an obligation of confidence may be relied on to preclude such unwanted intrusion into people's privacy when those conditions do not exist.
72. That was the problem at the heart of Kaye v Robertson. A television celebrity was recovering from catastrophic injuries in a private room which formed part of a ward at a NHS hospital. There were notices at the entrance to the ward, and also on the door of the private room, asking visitors to see a member of staff before they visited Mr Kaye, and a list of the people who might be allowed to visit him was pinned up outside his room. Journalists from the first defendant's newspaper ignored all these notices. They claimed that Mr Kaye had consented to being interviewed (although the evidence showed that he was in no fit state to give any kind of informed consent), and they sought to publish this interview, together with a number of photographs they took during their unwelcome intrusion into his rooms. Among these photographs were some which showed substantial scars to Mr Kaye's head at the site where his severe head and brain injuries had been caused.
73. The action was not brought in confidence, and no cases derived from the law of confidence were cited to the court during the one-day hearing. In the course of his short judgment Bingham LJ said at p 70 that the case highlighted, yet again, the failure of both the common law of England and statute to protect the personal privacy of individual citizens in an effective way. He cited in this context a recent comment by Professor Basil Markinensis (The German Law Torts, 2nd Edn, 1990 p 316):
"English law, on the whole compares unfavourably with German law. True, many aspects of the human personality and privacy are protected by a multitude of existing torts but this means fitting the facts of each case in the pigeon hole of an existing tort, and this process may not only involve strained constructions; often it may also leave a deserving plaintiff without a remedy."
74. In his equally short judgment Leggatt LJ referred at p 71 to the way in which the common law had developed in the United States to meet the need which the court on the present occasion was unable to fulfil satisfactorily. He described how over the last 100 years the right to privacy, or "the right to be let alone", has gained acceptance in most jurisdictions in the United States. In particular he referred to the way in which a so-called "right of publicity" has developed to protect the commercial interest of celebrities in their identities, citing Carson v Here's Johnny Portable Toilets Inc 698 F 2d 831, 835 (1983):
"The theory of the right is that a celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorised commercial exploitation of that identity. `The famous have an exclusive legal right during life to control and profit from the commercial use of their name and personality'."
He might also have referred to the judgment of McGeehan J in Tucker v News Media Ownership Ltd [1986] 2 NZLR 716 as a recent example of a judge in a different common law jurisdiction seeking to do justice in a case where the plaintiff's privacy had been hurtfully invaded.
75. How different the law of England and Wales is from the law in many jurisdictions in the United States and in Canada became apparent when we were shown a recent decision of the Supreme Court of Canada in Les Editions Vice-Versa Inc v Aubry [1998] 1 SCR 591. The claimant, then aged 17, had been photographed in a public place, sitting on the steps of a building. She sought damages because the photograph was taken without her consent and published without her consent. She was awarded Can$2000 compensation, an award which was upheld, by a majority, in both the higher courts to which the defendants appealed.
76. This case vividly illustrates the rule that the courts in this country should be very cautious, now that the Human Rights Act 1998 is in force, when seeking to derive assistance from judgments in other jurisdictions founded on some different rights-based charter.
77. The relevant provisions of what was called the Quebec Charter were in these terms:
"3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.
4. Every person has a right to the safeguard of his dignity, honour and reputation.
5. Every person has a right to respect for his private life.
9.1 In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Quebec.
In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.
49. Any unlawful interference with any right or freedom recognised by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom."
78. The effect of the judgments of the Supreme Court (which was only divided on the question of compensation) was that the right accorded by Section 5 of the Charter extended to the right of an individual to the protection of his or her image, and that that right is violated if such an image is taken and published without its owner's consent (unless it is a merely incidental feature of a photograph of a public place). L'Heureux Dubé and Bastarache JJ said at para 65, after considering some possible defences:
"None of the exceptions mentioned earlier based on the public's right to information is applicable here. Accordingly, there appears to be no justification for giving precedence to the appellants other than their submission that it would be very difficult in practice for a photographer to obtain the consent of all those he or she photographs in public places before publishing their photographs. To accept such an exception would, in fact, amount to accepting that the photographer's right is unlimited, provided that the photograph is taken in a public place, thereby extending the photographer's freedom at the expense of that of others. We reject this point of view. In the case at bar, the respondent's right to protection of her image is more important than the appellant's right to publish the photograph of the respondent without first obtaining her permission."
79. The right to respect for private and family life which is created by Article 8(1) of the European Convention on Human Rights appears at first sight similar to the right to respect for private life created by Section 5 of the Quebec Charter. They both owe their origin to Article 12 of the Universal Declaration of Human Rights, which provides that:
"No one shall be subjected to arbitrary interference with his privacy, family, home and correspondence, nor to attacks on his honour and reputation. Everyone has the right to the protection of law against such interference or attacks."
80. They are, however, different in one obvious respect. The combination of Section 9.1 and 49 of the Quebec Charter makes it clear that that charter has what is called "horizontal effect", in the sense that one private individual or entity can seek redress from another in relation to a breach of a right accorded by the Charter, as indeed occurred in the Vice-Versa case. Article 8(1) of the European Convention appears, read literally, to create an equally free-standing right, and its language reflects the intention set out in the preamble to the Convention, namely that one of the methods identified by the Council of Europe for achieving greater unity between its members was the maintenance and further realisation of human rights and fundamental freedoms. The preamble goes on to state that the Council of Europe had resolved (through the machinery of the Convention) to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration. To this end Article 1 declares that:
"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of the Convention."
81. When it is read more closely, however, the European Convention (unlike the Quebec Charter) seems to be primarily concerned with giving individuals rights against the state (to be equated with public authorities in the language of Article 8(2)). Thus Article 8(2) is concerned only with the circumstances in which a public authority may legitimately interfere with the exercise by an individual of his right to private and family life, and Section 8 of the Human Rights Act 1998 is concerned only with the power of a court to award compensation against acts of public authorities for unlawful acts which are incompatible with a Convention right. The Act gives the court no such statutory power to order one private entity to pay compensation to another in respect of a breach of Convention rights.
82. An English judge interpreting the Act and the Convention is therefore confronted with something of a dilemma. On the one hand, Article 8(1) of the Convention appears to create a right, exercisable against all the world, to respect for private and family life. On the other hand, Article 8(2) of the Convention, Section 8 of the Act, and the general philosophy of both the Convention and the Act (namely that these rights are enforceable only against public authorities), all appear to water down the value of the right created by Article 8(1).
83. In a series of decisions the European Court of Human Rights has addressed this dilemma by relying on the positive duty imposed on the member states by Article 1 of the Convention (see paragraph 80 above). A vivid example of this technique at work can be seen in the judgment of the court in A v United Kingdom 27 EHRR 611 when it was concerned with a complaint under Article 3 by a boy who had been hit by his stepfather with a garden cane. The court said at paras 21-22:
"The Court considers that treatment of this kind reaches the level of severity prohibited by Article 3.
It remains to be determined whether the State should be held responsible, under Article 3, for the beating of the applicant by his stepfather.
The Court considers that the obligation on the High Contracting parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, required States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals."
84. In other words, the court was saying that the boy had the right under Article 3 not to be subjected to inhuman or degrading treatment or punishment, and although it was his stepfather who had administered the treatment which breached that right, he was entitled to make a complaint against the state for its failure, in breach of Article 1, to secure his Article 3 right.
85. From time to time the court at Strasbourg has adopted a similar approach when applicants have complained to it that their Article 8(1) right to respect for their private and family life has been violated. Examples can be seen in Airey v Ireland 2 EHRR 305 paras 22 and 23, X and Y v The Netherlands 8 EHRR 235 paras 23 and 27, Stjerna v Finland 24 EHRR 194 para 38, Lopez Ostra v Spain 20 EHRR 277, paras 51 and 55, and Botta v Italy 26 EHRR 241 paras 33 and 34. In X and Y v The Netherlands the court said at para 23:
"The Court recalls that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative obligation, there may be positive obligations inherent in an effective respect for family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves."
86. In A v United Kingdom it was the deficiencies of the common law, in relation to the physical chastisement of children, which led the court to conclude that the United Kingdom had violated the Convention. This country narrowly escaped a similar finding by the European Commission on Human Rights in the Spencer case. A photograph of Lady Spencer had been taken with a telephoto lens while she was walking in the grounds of a private clinic at which she was receiving treatment. This photograph was published under the caption: "SO THIN: Victoria walks in the clinic grounds this week". Relying on the decision of this court in Kaye v Robertson, she did not pursue a claim in the English courts, but the Commission held that she should have pursued her remedies in these courts first. It appears that the eloquence of the advocate for the United Kingdom government persuaded the Commission that English law provided her with a potentially satisfactory remedy in an action for breach of confidence.
87. In this respect the Commission relied heavily on the strong and detailed case of the applicants in the domestic proceedings which pointed to their former friends as the direct source of the essential confidential information that had been published. Its determination ended in these terms:
"Accordingly, the Commission considers that the parties' submissions indicate that the remedy of breach of confidence (against the newspapers and their sources) was available to the applicants and that the applicants have not demonstrated that it was insufficient or ineffective in the circumstances of their cases. It considers that, insofar as relevant doubts remain concerning the financial awards to be made following a finding of a breach of confidence, they are not such as to warrant a conclusion that the breach of confidence action is ineffective or insufficient but rather a conclusion that the matter should be put to the domestic courts for consideration in order to allow those courts, through the common law system in the United Kingdom, the opportunity to develop existing rights by way of interpretation."
88. The Commission appears to be saying that since the authorities in this country have been content to leave it to the judges to develop the law in this sensitive field, it is the judges who must develop the law so that it gives appropriate recognition to Article 8(1) rights. Whether they do so in future by an extension of the existing frontiers of the law of confidence, or by recognising the existence of new relationships which give rise to enforceable legal rights (as has happened in relation to the law of negligence ever since the 3-2 decision of the House of Lords in Donoghue v Stevenson [1932] AC 562) is not for this court, on this occasion, to predict. The versatility of the common law to adapt to new situations was well described by Scott LJ in Haseldine v Daw [1941] 2 KB 343, 362-3:
"The common law has throughout its long history developed as an organic growth, at first slowly under the hampering restrictions of legal forms of process, more quickly in Lord Mansfield's time, and in the last one hundred years at an ever-increasing rate of progress as new cases, arising under new conditions of society, of applied science, and of public opinion, have presented themselves for solution by the courts."
89. Recent annual reports of the Law Commission show how successive Governments have been content to leave the development of the law in these fields to the judges. As long ago as 1981 the Law Commission recommended to Parliament that the law of confidence should be reformed and codified (see its report on Breach of Confidence (1981) Law Com No 110), but although this recommendation was accepted by a former Government it was never implemented. The Commission's 1998 annual report (Law Com No 258, p 5) describes how in 1998, following the Spencer decision, a new Government rejected that report "because developing case law since its publication had clarified the scope and extent of the breach of confidence action, as confirmed by the European Commission on Human Rights".
90. In its 1993 Annual Report (Law Com No 223, p 25) the Commission described how one of the Commissioners had recently assisted in the preparation of a Government consultation paper on the infringement of privacy (which did not lead to the enactment of legislation). The Commission's anxieties, if the law of privacy was put on a statutory basis but not the law of confidence, were clearly articulated in paragraph 2.25 of that report. In the event, the executive and the legislature took the line of least resistance and left the development of both these fields of law to the judiciary, and that is how matters now stand. That members of the Appellate Committee of the House of Lords are uneasy about the present condition of our law is evident from the observations of Lord Browne-Wilkinson and Lord Nicholls in R v Khan [1997] AC 558, 571A-D and 582G-583A. On other occasions during the last 20 years some of our most senior judges have underlined the importance of the right to privacy: see Lord Scarman in Morris v Beardmore [1981] AC 446, 464C ("fundamental"), Lord Denning MR in Schering Chemicals v Falkman [1982] QB 1, 21C ("fundamental") and Lord Keith of Kinkel in Attorney-General v Guardian Newspapers Ltd (No 2) [1990] QB 109, 255 ("clearly one which the law should in this field seek to protect").
91. One difficulty which will confront the courts when they have to tackle this problematic issue head-on is that Article 1 of the Convention, on which a state's positive duty is founded when it is brought before the international court which has the duty of enforcing member states' duties under the Convention, does not find its way into the Schedule to the Human Rights Act 1998 which sets out the "Convention rights" referred to in Sections 2, 3, 4, 6 and 7 of the Act. On the other hand, when a court determines a question which has arisen in connection with a Convention right, it must take into account any relevant judgment of the European Court of Human Rights (Section 2(1)(a)), and those judgments have made it clear that the law-making body of the member states has the positive duty identified in the judgments to which I have referred. Where Parliament in this country has been so obviously content to leave the development of the law to the judges, it might seem strange if the absence of Article 1 from our national statute relieved the judges from taking into account the positive duties identified by the court at Strasbourg when they develop the common law. In this judgment, however, I have the luxury of identifying difficult issues: I am not obliged to solve them.
92. One matter, however, is clear, and this makes the task of the court that much easier on the present occasion. One of the Law Commission's anxieties in 1993 was that the law might develop in such a way that breaches of privacy, but not breaches of confidence, would be subject to statutory defences which the common law had not yet clearly recognised. In this respect, at least, Parliament has now intervened to provide that where proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material, the court must have regard, among other things, to any relevant privacy code (Section 12(4)). In this context we were shown by Mr Tugendhat the Code of Practice ratified by the Press Complaints Commission in November 1997, which states that all members of the press have a duty to maintain the highest professional and ethical standards, and that the code sets the benchmarks for those standards: "It both protects the rights of the individual and upholds the public's right to know".
93. The code covers 16 discrete topics, the third of which is "Privacy". This is one of the topics where the code makes clear that there may be exceptions to the rules set out in the code where they can be demonstrated to be in the public interest. This phrase is said to include (i) detecting or exposing crime or a serious misdemeanour; (ii) protecting public health and safety; and (iii) preventing the public from being misled by some statement or action of an individual or organisation. The rules on privacy are disarmingly simple:
"3. Privacy
(i) Everyone is entitled to respect for his or her private and family life, home, health and correspondence. A publication will be expected to justify intrusions into any individual's private life without consent;
(ii) The use of long lens photography to take pictures of people in private places without their consent is unacceptable.
Note - Private places are public or private property where there is a reasonable expectation of privacy."
94. It appears to me that the existence of these statutory provisions, coupled with the current wording of the relevant privacy code, mean that in any case where the court is concerned with issues of freedom of expression in a journalistic, literary or artistic context, it is bound to pay particular regard to any breach of the rules set out in Clause 3 of the code, especially where none of the public interest claims set out in the preamble to the code is asserted. A newspaper which flouts Section 3 of the code is likely in those circumstances to have its claim to an entitlement to freedom of expression trumped by Article 10(2) considerations of privacy. Unlike the court in Kaye v Robertson, Parliament recognised that it had to acknowledge the importance of the Article 8(1) respect for private life, and it was able to do so untrammelled by any concerns that the law of confidence might not stretch to protect every aspect of private life.
95. It follows that on the present occasion it is not necessary to go beyond Section 12 of the 1998 Act and Clause 3 of the Press Complaints Commission's code to find the ground rules by which we should weigh the competing considerations of freedom of expression on the one hand and privacy on the other. So far as privacy is concerned, the case of the first and second claimants is not a particularly strong one. They did not choose to have a private wedding, attended by a few members of their family and a few friends, in the normal sense of the words "private wedding". There is nothing in the court's papers to belie the suggestion at page 88 of the disputed Issue 639 of Hello! that they invited 250 guests, and the trappings of privacy in this context are identical with the trappings of confidentiality to which I have alluded earlier in this judgment. Although by clause 6 of their agreement with OK! they undertook to use their best efforts to ensure that their guests "shall not publish and/or broadcast ... or write any article about, or give any extended comment, report or interview to any media concerning the Wedding", there is no evidence before the court which shows that they took any steps to enforce that undertaking, so far as their guests were concerned.
96. Mr Carr did not seek to have recourse to any public interest defence, and I did not obtain any assistance from his citation of the very general principles stated by members of this court in Woodward v Hutchins [1977] 1 WLR 760, a case which preceded modern developments in practice (at any rate in the Queen's Bench Division) in relation to breach of confidence claims and which was concerned with the appropriateness of an injunction framed in astonishingly wide terms. Either the claimants will establish at trial that this particular occasion successfully retained the necessary indicia of confidentiality, so far as the taking of photographic images is concerned, or they will not. I do not consider that their privacy-based case, as distinct from their confidentiality-based case, adds very much. I am satisfied, however, that on the present untested evidence the claimants are "likely to establish that publication should not be allowed" on confidentiality grounds. This is not, however, the end of the matter, as I must turn to other factors affecting the balance of convenience and the manner in which the court should exercise its equitable jurisdiction.
97. So far as Hello!'s case is concerned, it appears to me on the evidence that there is a substantial risk that if an injunction "killing" this weekly edition of Hello! were to turn out to have been wrongly granted, Hello! would suffer damages which it would be extremely difficult to quantify in money terms. Although I take into account Mr Myerson's emollient evidence in answer, there appears on first impression to be a good deal of force in M Cartwright's evidence to the effect that Hello! would be likely to suffer losses over and above the financial loss associated with killing this edition which it would be very difficult to compute in money terms.
98. So far as OK! is concerned, if it wins at the trial, it will be able to have recourse to the very powerful weapon, fashioned by equity, of requiring Hello! to account to it for all the profits it has made from the publication of Issue 639. Even if it prefers to pursue its remedy in damages, I cannot see anything in its evidence which would make it particularly difficult for experienced accountants to compute its financial losses. Before deciding to pay Mr Douglas and Ms Zeta-Jones sums of the magnitude set out in its agreement with them, OK! must have had a pretty good idea of the income stream it hoped to generate from the exploitation of the rights it was acquiring. Since Hello! did not publish Issue 639 until after it had seen OK!'s evidence in this court, it could not realistically maintain that the losses claimed by OK! were too remote or were otherwise unforeseeable. I have not overlooked Mr Ashford's evidence about the possible adverse effect of this incident on the success, or otherwise, of next year's planned float on the stock market, but Mr Ashford did not spell out in any way the possible impact this might have on OK! itself, as opposed to its owners.
99. It therefore appears to me that the balance of convenience, as between OK! and Hello!, therefore favours Hello! because it might be very difficult for Hello! to compute its losses in money terms if Issue 639 was killed, whereas OK! did not appear to face the same difficulties if publication was allowed. There was no suggestion in the evidence that Hello! might be unable to pay the huge sums it might be held liable to pay (whether as damages or by way of an account of profits) if this action succeeded at trial.
100. As between these two parties, therefore, the balance of convenience appeared to favour leaving OK! to assert its legal rights at the trial of what is essentially a commercial dispute between two magazine enterprises which are not averse to exercising spoiling tactics against each other. I am not sorry to reach this conclusion because although it would have been wrong to withhold relief on equitable grounds alone, features of OK!'s past conduct, even making allowance for the fact that it did not have much time to defend itself against Hello!'s charges, appear to have made it an unattractive suitor for the bounty of a court of equity. The case of Express Newspapers plc v News (UK) plc (1991) FSR 36, which Mr Carr showed to us, is not directly applicable, because the Vice-Chancellor was concerned in that case with "tit for tat" behaviour by competing newspapers within the context of a single legal action, but it is illustrative of the reasons why courts are not likely to lean over backwards to grant equitable relief to magazines which behave in the manner attributed to OK!, which is described in paragraphs 11 - 16 of this judgment.
101. The matter which gave me greater cause for hesitation was whether having decided that the balance of convenience favoured the withholding of injunctive relief so far as OK! was concerned, Mr Douglas and Ms Zeta-Jones were nevertheless entitled to the protection of an injunction. In the end I came to agree with the views expressed on this issue by Sedley LJ, to which I have nothing to add.
102. I would add that I have read the judgment of Keene LJ, and agree, for the reasons he gives, that if we are not willing to continue the injunction on confidence grounds, there is certainly no reason to continue it on the basis of the complaints of malicious falsehood or unlawful interference with contractual relations. Counsel for the claimants may wish to consider in these circumstances whether it would be better for this action to be transferred at this stage to the Chancery Division, on the grounds that the malicious falsehood claim appears to be hopeless and the Chancery Division has greater expertise in taking accounts.
103. It was for these reasons that I decided that the injunction should be discharged.
LORD JUSTICE SEDLEY:
104. We have taken time to set out our reasons for discharging the injunction prohibiting Hello! from publishing illicitly taken photographs of the wedding of the two first-named claimants because the case trenches upon an important and developing area of our law. The relevant history is set out in the judgment of Brooke LJ.
105. Let me first set out my conclusions:
A. The case in malicious falsehood is misconceived.
B. The case for an unlawful interference with contractual relations is not yet made out.
C. If there is a breach of copyright, it can be adequately compensated for in damages.
D. The two first-named claimants have a legal right to respect for their privacy, which has been infringed.
E. The circumstances of the infringements are such that the claimants should be left to their remedy in damages.
The first three of these can be very shortly explained.
106. Hello! is entitled to claim that the pictures it is publishing are exclusive to it because they are. The magazine is not claiming to have the exclusive rights to the wedding photographs. There is therefore no falsehood in the words "Exclusive photographs" on the cover of the disputed issue.
107. It may well turn out that the claimants can establish at trial a sufficient probability that Hello!'s photographs were obtained by means which were unlawful in the State of New York, and that Hello!, by reason of what it knew when it bought the rights, is sufficiently implicated in the illegality to establish an unlawful interference with the claimants' contract. But we lack any evidence of New York State law - for example, in what circumstances an unauthorised entry becomes a crime there, or whether a prohibited act by a lawful visitor renders their presence a trespass ab initio. The factual evidence we have does not enable us to form more than a provisional view of how the contested photographs were obtained.
108. Mr Tugendhat has understandably not pressed the copyright issue, and it requires no further comment. I turn therefore to the main issues.
Is there today a right of privacy in English law?
109. The common law, and equity with it, grows by slow and uneven degrees. It develops reactively, both in the immediate sense that it is only ever expounded in response to events and in the longer-term sense that it may be consciously shaped by the perceived needs of legal policy. The modern law of negligence exemplifies both senses.
110. The history of the law of confidence, however, while it displays many instances of the first kind of reactivity, has shown little of the second. The courts have done what they can, using such legal tools as were to hand, to stop the more outrageous invasions of individuals' privacy; but they have felt unable to articulate their measures as a discrete principle of law. Nevertheless, we have reached a point at which it can be said with confidence that the law recognises and will appropriately protect a right of personal privacy.
111. The reasons are twofold. First, equity and the common law are today in a position to respond to an increasingly invasive social environment by affirming that everybody has a right to some private space. Secondly, and in any event, the Human Rights Act 1998 requires the courts of this country to give appropriate effect to the right to respect for private and family life set out in Article 8 of the European Convention on Human Rights and Fundamental Freedoms. The difficulty with the first proposition resides in the common law's perennial need (for the best of reasons, that of legal certainty) to appear not to be doing anything for the first time. The difficulty with the second lies in the word "appropriate". But the two sources of law now run in a single channel because, by virtue of s.2 and s.6 of the Act, the courts of this country must not only take into account jurisprudence of both the Commission and the European Court of Human Rights which points to a positive institutional obligation to respect privacy; they must themselves act compatibly with that and the other Convention rights. This, for reasons I now turn to, arguably gives the final impetus to the recognition of a right of privacy in English law.
112. The reason why it is material to this case is that on the present evidence it is possible that the photographer was an intruder with whom no relationship of trust had been established. If it was a guest or an employee, the received law of confidence is probably all that the claimants need.
Common law and equity
113. Lawyers in this country have learned to accept that English law recognises no right of privacy. It was for this express reason that counsel for the actor Gordon Kaye instead put his case against the Sunday Sport, whose reporter and photographer had shamefully invaded the hospital room where Mr Kaye was recovering from serious head injuries, not as a breach of privacy, which it plainly was, but as a case of libel, malicious falsehood, trespass to the person and passing off. He managed only to hold an injunction to stop the paper claiming, by way of malicious falsehood, that Mr Kaye had voluntarily given an interview. But this court in Kaye v Robertson [1991] FSR 62 did not affirmatively consider and decide whether there is a right of privacy in English law. The court adopted - for it plainly shared - counsel's assumption that there was none. Thus Glidewell LJ, giving the leading judgment, introduced his reasons in this way:
"It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a person's privacy. The facts of the present case are a graphic illustration of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals."
114. Bingham LJ, agreeing, said:
"This case nonetheless highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens."
115. Leggatt LJ, also agreeing, spoke of the way in which United States law had responded to "the need which in the present case we are unable to fulfil satisfactorily". Recognising that this meant an enforceable right to privacy he said:
"This right has been so long disregarded here that it can be recognised only by the legislature."
116. Nobody supposes that the members of the court which expressed this view were unfamiliar with the body of cases of which the best-known is Prince Albert v Strange (1849) 1 H & T 1 or therefore that their assent to counsel's concession was per incuriam. But it is unhelpful now to speculate whether they would have maintained their view had the point been argued before them. The legal landscape has altered.
117. The argument would not have been that a right of privacy had been spelt out by the courts: plainly it had not. It would have been, as it has been in Mr Tugendhat's condensed but convincing submission, that the tort of breach of confidence contains all that is necessary for the fair protection of personal privacy, and that it is now a relatively small step to articulate it in that way - as was done four years after Kaye v Robertson by Laws J in Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804:
"I entertain no doubt that disclosure of a photograph may, in some circumstances, be actionable as a breach of confidence... If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence."
118. This was of course obiter, but it has been understandably influential in the thinking of lawyers and commentators since it was said. The examples given by Laws J of invasions of privacy in the absence of some extant confidential relationship are taken from the speech of Lord Goff in Attorney-General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109, 281:
"I realise that, in the vast majority of cases, in particular those concerned with trade secrets, the duty of confidence will arise from a transaction or relationship between the parties - often a contract, in which event the duty may arise by reason of either an express or an implied term of that contract. It is in such cases as these that the expressions "confider" and "confidant" are perhaps most aptly employed. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers - where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by. I also have in mind the situations where secrets of importance to national security come into the possession of members of the public ..."
119. This passage, it seems to me, dulls the edge of the decision of Griffiths J in Bernstein v Skyviews Ltd [1978] QB 479, a decision which in any event assumed that there was no legal right to privacy and focused instead on whether the law of trespass could fill the gap: see in particular 488 B-D.
120. I do not propose to go through the body of recent extra-judicial writings by judges on the subject, which Mr Tugendhat has put before us. While these are valuable indicators to those who read them of changes in the legal climate, their authors would be the first to stress that they are not a source of law. It would be less than candid, however, not to acknowledge a debt to two particular essays. One is the survey of the field as it lies at present in Sir Brian Neill's essay "Privacy: a challenge for the next century" in Protecting Privacy (ed. B. Markesinis, 1999). The other is the celebrated essay by Samuel D. Warren and Louis D. Brandeis (at that time partners in a Boston legal practice; the latter to become an associate justice of the Supreme Court), "The right to privacy" (1890) 4 Harvard LR 193, deriving from chiefly English case-law what they memorably named "the right of the individual to be let alone" as a freestanding right independent of property rights. As all these authors recognise, law emerges case by case from issues which have been argued out.
121. The cases in which the entitlement to the protection of confidences has been argued out are, in fact, numerous. In the leading case of Argyll v Argyll [1967] Ch. 302, 318-322, Ungoed-Thomas J considered in detail Prince Albert's case, itself reliant on earlier authority, and such intervening cases as Tuck v Priester (1887) 19 QBD 629. He concluded that a duty of confidence, which may be implied as well as express, may be broken independently of any property or contract rights, and that such a breach can be restrained in equity. He cited some important passages from the judgment of Lord Cottenham LC in Prince Albert's case, including one in which Lord Cottenham rejected the argument that he should follow those cases which held that a title at law must first be established. Of these he said:
"...they have no application to cases in which this court exercises an original and independent jurisdiction, not for the protection of a merely legal right, but to prevent what this court considers and treats as a wrong, whether arising from violation of unquestioned right or from breach of trust, confidence or contract, as in the present case ..."
and he described the case as one "where the privacy is the right invaded" (the first "the" may be a printer's interpolation).
122. Whether or not the fusion of law and equity would by itself have been sufficient to introduce an entitlement to damages for the violation of this right, in Attorney-General v Guardian Newspapers (No. 2) [1990] 1 AC 109, 286, Lord Goff said:
"The remedy of an account is an alternative to the remedy of damages, which in cases of breach of confidence is now available, despite the equitable nature of the wrong, through a beneficent interpretation of the Chancery Amendment Act 1858 (Lord Cairns' Act) ..."
123. This passage was cited, along with much other relevant English law, by the European Commission of Human Rights in Earl Spencer v United Kingdom (No. 28851-2/95; 16 January 1998). By its decision the Commission declared inadmissible the complaint of the Earl and Countess that English law failed to protect their privacy against what on any view had been hurtful and invasive publicity. The reason was that the United Kingdom government had submitted successfully that, although "there is no law of privacy, as such, in England and Wales" (see Kaye v Robertson), the tort of breach of confidence was now well established; that its scope and extent, in particular as to damages (see Malone v Metropolitan Police Commissioner [1979] Ch 344, per Megarry V-C) were still in issue; but that the remedy "was available to the applicants and the applicants have not demonstrated that it was insufficient or ineffective in the circumstances of their cases".
124. Of course neither Her Majesty's Government, which has the conduct of the United Kingdom's cases in Strasbourg, nor the Commission (during its lifetime), had power to determine what the law of England and Wales is; but the fact that this unanimous conclusion could emerge from a detailed consideration, after written and oral argument, of the state of the extant English authorities by a body of distinguished European jurists is of real persuasive force. It would not be a happy thing if the national courts were to go back without cogent reason on the United Kingdom's successful exegesis of its own law. It was while Spencer was pending in the Commission that the House of Lords heard and decided R v Khan (Sultan) [1997] AC 558. There (at 582-3) Lord Nicholls said:
"I prefer to leave open for another occasion the important question whether the present, piecemeal protection of privacy has now developed to the extent that a more comprehensive principle can be seen to exist."
125. I would conclude, at lowest, that Mr Tugendhat has a powerfully arguable case to advance at trial that his two first-named clients have a right of privacy which English law will today recognise and, where appropriate, protect. To say this is in my belief to say little, save by way of a label, that our courts have not said already over the years. It is to say, among other things, that the right, grounded as it is in the equitable doctrine of breach of confidence, is not unqualified. As Laws J said in Hellewell:
"It is of course elementary that, in all such cases, a defence based on the public interest would be available"
126. What a concept of privacy does, however, is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.
127. It is relevant, finally, to note that no Strasbourg jurisprudence contra-indicates, much less countermands, the establishment in national legal systems of a qualified right of privacy; and that the courts of France and Germany, to take two other signatories of the Convention, have both in recent years developed long-gestated laws for the qualified protection of privacy against both state and non-state invasion (see E. Picard, "The right to privacy in French law" in Protecting Privacy, above; Markesinis, The German Law of Torts, 3rd ed. (1994) p. 63-6).
128. The Human Rights Act 1998 was brought into force on 2 October 2000. It requires every public authority, including the courts, to act consistently with the European Convention on Human Rights. What this means is a subject of sharp division and debate among both practising and academic lawyers: does it simply require the courts' procedures to be Convention-compliant, or does it require the law applied by the courts, save where primary legislation plainly says otherwise, to give effect to the Convention principles? This is not the place, at least without much fuller argument, in which to resolve such a large question. But some attitude has to be taken to Mr Tugendhat's submission that, whatever the current state of common law and equity, we are obliged now to give some effect to Article 8, among other provisions, of the Convention.
129. It is helpful, first of all, to see how much change he is soliciting. If he is right in his primary submission then the law is today adequately configured to respect the Convention. If it is not - for example if the step from confidentiality to privacy is not simply a modern restatement of the scope of a known protection but a legal innovation - then I would accept his submission (for which there is widespread support among commentators on the Act: see in particular M Hunt, The `Horizontal Effect' of the Human Rights Act [1998] PL 423) that this is precisely the kind of incremental change for which the Act is designed: one which without undermining the measure of certainty which is necessary to all law gives substance and effect to s.6:-
"6. Acts of public authorities
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right
(2) Subsection (1) does not apply to an act if-
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section "public authority" includes -
(a) a court or tribunal, ...
(6) `An act' includes a failure to act ..."
130. Such a process would be consonant with the jurisprudence of the European Court of Human Rights, which s.2 of the Act requires us to take into account and which has pinpointed Article 8 as a locus of the doctrine of positive obligation. Thus in X and Y v The Netherlands (1986) 8 EHRR 235, para. 23, the Court said:
"The Court recalls that although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private or family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves."
131. More immediately to the present point is s. 12 of the Act. This provides:
12. Freedom of expression
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) If the person against whom the application for relief is made ("the respondent") is neither present nor represented, no such relief is to be granted unless the court is satisfied -
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-
(a) the extent to which -
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) In this section -
"court" includes a tribunal; and
"relief" includes any remedy or order (other than in criminal proceedings).
132. There is no need to look at the parliamentary genesis of this section in order to see that it, with s. 13, is of a different kind from the rest of the Act. It descends from the general to the particular, singling out one Convention right and making procedural and substantive provision for litigation in which the right is directly or indirectly implicated. The Convention right in question is the right to freedom of expression:
Article 10
Freedom of expression
(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers....
(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
133. Two initial points need to be made about s. 12 of the Act. First, by subsection (4) it puts beyond question the direct applicability of at least one article of the Convention as between one private party to litigation and another - in the jargon, its horizontal effect. Whether this is an illustration of the intended mechanism of the entire Act, or whether it is a special case (and if so, why), need not detain us here. The other point, well made by Mr Tugendhat, is that it is "the Convention right" to freedom of expression which both triggers the section (see s. 12(1)) and to which particular regard is to be had. That Convention right, when one turns to it, is qualified in favour of the reputation and rights of others and the protection of information received in confidence. In other words, you cannot have particular regard to Article 10 without having equally particular regard at the very least to Article 8:
Article 8
Right to respect for private and family life
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
134. Mr Carr was disposed to accept this; so far as I can see he had no choice, although it is perhaps unexpected to find a claimant relying on s.12 against a publisher rather than vice versa. But he balked at what Mr Tugendhat submitted, and I agree, was the necessary extension of the subsection's logic. A newspaper, say, intends to publish an article about an individual who learns of it and fears, on tenable grounds, that it will put his life in danger. The newspaper, also on tenable grounds, considers his fear unrealistic. First of all, it seems to me inescapable that s. 12(4) makes the right to life, which is protected by Article 2 and implicitly recognised by Article 10(2), as relevant as the right of free expression to the court's decision; and in doing so it also makes Article 17 (which prohibits the abuse of rights) relevant. But this in turn has an impact on s. 12(3) which, though it does not replace the received test (or tests) for prior restraint, qualifies them by requiring a probability of success at trial. The gauging of this probability, by virtue of s. 12(4), will have to take into account the full range of relevant Convention rights.
135. How is the court to do this when the evidence - viz that there is and that there is not an appreciable risk to life - is no more than evenly balanced? A bland application of s. 12(3) could deny the claimant the court's temporary protection, even if the potential harm to him, should the risk eventuate, was of the gravest kind and that to the newspaper and the public, should publication be restrained, minimal; and a similarly bland application of s. 12(4), simply prioritising the freedom to publish over other Convention rights (save possibly freedom of religion: see s.13), might give the newspaper the edge even if the claimant's evidence were strong. I agree with Mr Tugendhat that this cannot have been Parliament's design. This is not only, as he submits, because of the inherent logic of the provision but because of the court's own obligation under s. 3 of the Act to construe all legislation so far as possible compatibly with the Convention rights, an obligation which must include the interpretation of the Human Rights Act itself. The European Court of Human Rights has always recognised the high importance of free media of communication in a democracy, but its jurisprudence does not - and could not consistently with the Convention itself - give Article 10(1) the presumptive priority which is given, for example, to the First Amendment in the jurisprudence of the United States' courts. Everything will ultimately depend on the proper balance between privacy and publicity in the situation facing the court.
136. For both reasons, and in agreement with paragraphs 150 to 154 of the judgment of Keene LJ and paragraph 94 of the judgment of Brooke LJ, I accept that s. 12 is not to be interpreted and applied in the simplistic manner for which Mr Carr contends. It will be necessary for the court, in applying the test set out in s. 12(3), to bear in mind that by virtue of s. 12(1) and (4) the qualifications set out in Article 10(2) are as relevant as the right set out in Article 10(1). This means that, for example, the reputations and rights of others - not only but not least their Convention rights - are as material as the defendant's right of free expression. So is the prohibition on the use of one party's Convention rights to injure the Convention rights of others. Any other approach to s.12 would in my judgment violate s.3 of the Act. Correspondingly, as Mr Tugendhat submits, "likely" in s. 12(3) cannot be read as requiring simply an evaluation of the relative strengths of the parties' evidence. If at trial, for the reasons I have given, a minor but real risk to life, or a wholly unjustifiable invasion of privacy, is entitled to no less regard, by virtue of Article 10(2), than is accorded to the right to publish by Article 10(1), the consequent likelihood becomes material under s. 12(3). Neither element is a trump card. They will be articulated by the principles of legality and proportionality which, as always, constitute the mechanism by which the court reaches its conclusion on countervailing or qualified rights. It will be remembered that in the jurisprudence of the Convention proportionality is tested by, among other things, the standard of what is necessary in a democratic society. It should also be borne in mind that that the much-quoted remark of Hoffmann LJ in R v Central Television plc [1994] Fam. 192, 203 that freedom of speech "is a trump card which always wins" came in a passage which expressly qualified the proposition (as Lord Hoffmann has since confirmed, albeit extra-judicially, in his 1996 Goodman Lecture) as lying "outside the established exceptions (or any new ones which Parliament may enact in accordance with its obligations under the Convention)". If freedom of expression is to be impeded, in other words, it must be on cogent grounds recognised by law.
137. Let me summarise. For reasons I have given, Mr Douglas and Ms Zeta-Jones have a powerful prima facie claim to redress for invasion of their privacy as a qualified right recognised and protected by English law. The case being one which affects the Convention right of freedom of expression, s.12 of the Human Rights Act requires the court to have regard to Article 10 (as, in its absence, would s.6). This, however, cannot, consistently with s.3 and Article 17, give the Article 10(1) right of free expression a presumptive priority over other rights. What it does is require the court to consider Article 10(2) along with 10(1), and by doing so to bring into the frame the conflicting right to respect for privacy. This right, contained in Article 8 and reflected in English law, is in turn qualified in both contexts by the right of others to free expression. The outcome, which self-evidently has to be the same under both articles, is determined principally by considerations of proportionality.
The injunction
138. In his opening argument Mr Carr, having submitted (acceptably for present purposes) that this case is a case of breach of confidence or nothing, sought to stifle that cause of action at birth by arguing that pictures such as the defendant was proposing to publish were not information at all. This had the makings of an own goal, since it might well have excluded Article 10 and with it s.12 from the defendants' own armoury. But it is plainly wrong. The offending photographs convey the simple information: "This is what the wedding and the happy couple looked like."
139. It is also as information, however, that the photographs invade the privacy of Mr Douglas and Ms Zeta-Jones: they tell the world things about the wedding and the couple which the claimants have not consented to. On the present evidence, whoever took the photographs probably had no right to be there; if they were lawfully there, they had no right to photograph anyone; and in either case they had no right to publicise the product of their intrusion. If it stopped there, this would have been an unanswerable case for a temporary injunction and no doubt in due course for a permanent one; perhaps the more unanswerable, not the less, for the celebrity of the two principal victims. Article 8, whether introduced indirectly through s. 12 or directly by virtue of s.6, will of course require the court to consider "the rights and freedoms of others", including the Article 10(1) right of Hello! And Article 10, by virtue of s.6 and s.12, will require the court, if the common law did not already do so, to have full regard to Hello!'s right to freedom of expression. But the circumstances in which the photographs must have been obtained would have robbed those rights and freedoms of substance for reasons which should by now be plain.
140. The facts, however, do not stop here. The first two claimants had sold most of the privacy they now seek to protect to the third claimant for a handsome sum. If all that had happened were that Hello! had got hold of OK's photographs, OK would have proprietary rights and remedies at law, but Mr Douglas and Ms Zeta-Jones would not, I think, have any claim for breach of the privacy with which they had already parted. The present case is not so stark, because they were careful by their contract to retain a right of veto over publication of OK's photographs in order to maintain the kind of image which is professionally and no doubt also personally important to them. This element of privacy remained theirs and Hello!'s photographs violated it.
141. Article 8, however, gives no absolute rights, any more than does the law of breach of confidence or privacy. Not only are there the qualifications under Article 8(2); what paragraph (1) requires is respect for, not inviolability of, private and family life. Taking it for the present that it is the state, represented by the court, which must accord that respect, what amounts to respect must depend on the full set of circumstances in which the intrusion has occurred. This intrusion was by uncontrolled photography for profit of a wedding which was to be the subject of controlled photography for profit.
142. Thus the major part of the claimants' privacy rights have become the subject of a commercial transaction: bluntly, they have been sold. For reasons more fully spelt out by Brooke LJ the frustration of such a transaction by unlawful means, if established, is in principle compensable in money, whether by way of an account of profits or damages. There is no reason in law why the cost to the wrongdoer should not be heavy enough to demonstrate that such activity is not worthwhile. The retained element of privacy, in the form of editorial control of OK's pictures, while real, is itself as much a commercial as a personal reservation. While it may be harder to translate into lost money or an account of profits, it can readily be translated into general damages of a significant amount.
143. Two caveats are necessary. I do not suggest for a moment that there is a bright line between the personal and the commercial and that everything on the commercial side, being about money, can be dealt with by an award of damages. Nor, equally, should it be thought that either Article 8 or our domestic law will never protect privacy which is being turned to commercial ends. Everything will depend on the infinite variety of facts thrown up case by case.
144. In the present case, and not without misgiving, I have concluded that although the first two claimants are likely to succeed at trial in establishing a breach of their privacy in which Hello! may be actionably implicated, the dominant feature of the case is that by far the greater part of that privacy has already been traded and falls to be protected, if at all, as a commodity in the hands of the third claimant. This can be done without the need of an injunction, particularly since there may not be adequate countervailing redress for the defendants if at trial they stave off the claim for interference with contractual relations. The retained element of the first two claimants' privacy is not in my judgment - though I confess it is a close thing - sufficient to tilt the balance of justice and convenience against such liberty as the defendants may establish, at law and under Article 10, to publish the illicitly taken photographs.
LORD JUSTICE KEENE:
The Approach at this stage:
145. This appeal concerns an interlocutory injunction which has been granted in the High Court in advance of any trial of the issues in the case. That is a statement of the obvious, but it is nonetheless important, because it affects the approach to be adopted by a court. In most situations where such an injunction is sought, the court would be concerned merely with whether there was a serious issue to be tried and, if so, with the balance of convenience: American Cyanamid v Ethicon Ltd [1975] AC 396. However, in the present case that cannot be the appropriate approach, and neither party seeks to maintain that it is.
146. First, this is a case which falls within the principles established by this court in Cambridge Nutrition Ltd v BBC [1990] 3 All ER 523. In the words of Kerr LJ in that case:
"The subject matter concerns the right to publish an article, or to transmit a broadcast, whose importance may be transitory but whose impact depends on timing, news value and topicality". p.535
147. In such cases, the parties are principally interested in the grant or refusal of the interlocutory injunction, even though the damages claim may well remain as a secondary objective. In such circumstances, the court must look beyond conventional American Cyanamid principle and seek to discern where the balance of justice lies. The present proceedings, where both OK! magazine and Hello! magazine are published weekly, are undoubtedly concerned with material whose topicality is of the essence.
148. Secondly, this court is required by section 12(1) of the Human Rights Act 1998 to apply section 12(3) thereof.. Section 12(1) states:
"This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression."
It is then provided by section 12(3):
"No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed."
149. It is not in dispute that section 12(3) is applicable in this case. Mr Tugendhat's submission is that the phrase "likely to establish" does not mean "more probable than not", because that interpretation in certain circumstances could bring it into conflict with the European Convention on Human Rights itself by giving priority to Article 10, the right to freedom of expression, over Article 8, the right to respect for private and family life. Such an automatic priority, it is said, would not be in conformity with the Convention. Since section 3(1) of the Human Rights Act requires the court to construe legislation in a way which is compatible with the Convention rights "so far as it is possible to do so", section 12(3) itself must be read in a way which avoids giving precedence to Article 10 rights. It is argued on behalf of the claimants that the words "likely to establish" in that subsection should be taken to mean "not fanciful" or "on the cards".
150. For my part, I do not accept that there is any need for conflict between the normal meaning to be attached to the words in section 12(3) and the Convention. The subsection does not seek to give a priority to one Convention right over another. It is simply dealing with the interlocutory stage of proceedings and with how the court is to approach matters at that stage in advance of any ultimate balance being struck between rights which may be in potential conflict. It requires the court to look at the merits of the case and not merely to apply the American Cyanamid test. Thus the court has to look ahead to the ultimate stage and to be satisfied that the scales are likely to come down in the applicant's favour. That does not conflict with the Convention, since it is merely requiring the court to apply its mind to how one right is to be balanced, on the merits against another right, without building in additional weight on one side. In a situation such as the one postulated by Mr Tugendhat, where the non-Article 10 right is of fundamental importance to the individual, such as the Article 2 right to life, the merits will include not merely the evidence about how great is the risk of that right being breached, but also a consideration of the gravity of the consequences for an applicant if the risk materialises. The nature of the risk is part of the merits, just as it would be at trial when the balance had to be struck. That is as relevant at the interlocutory stage as it would be at trial. But that does not require any strained interpretation of section 12(3).
151. Certainly section 12(3) is making prior restraint (i.e. before trial) more difficult in cases where the right to freedom of expression is engaged than where it is not. That is not a novel concept in English law. As was said by Laws J. in R v Advertising Standards Authority Ltd, ex parte Vernons Organisation Ltd [1992] 1 WLR 1289, at 1293 A-B:
"there is a general principle in our law that the expression of opinion and the conveyance of information will not be restrained by the courts save on pressing grounds. Freedom of expression is as much a sinew of the common law as it is of the European Convention for the Protection of Human Rights and Fundamental Freedoms."
152. Perhaps more to the point, the jurisprudence of the European Court of Human Rights is generally hostile to prior restraint by the courts. Prior restraints on publication are not prohibited by the Convention, as the European Court made clear in The Observer and the Guardian v United Kingdom [1992] 14 EHRR 153, the "Spycatcher" case, but in that same case it went on to say:
"On the other hand, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest." (p.191)
153. It is impossible to accept that a statutory provision requiring a court to consider the merits of the case and to be satisfied that the balance is likely to be struck in favour of the applicant before prior restraint is to be granted is incompatible with the Convention. It follows that no strained reading of the language of section 12(3) is needed to render it compatible with Convention rights. The wording can be given its normal meaning. Consequently the test to be applied at this stage is whether this court is satisfied that the applicant is likely to establish at trial that publication should not be allowed. Even then, there remains a discretion in the court.
The Causes of Action:
154. In these proceedings four causes of action are set out in the Particulars of Claim, but one of those, infringement of copyright, is not relied upon for the purposes of the claim for an interlocutory injunction. The remaining ones are malicious falsehood, interference with contractual relations and breach of confidence. It is convenient to consider those claims in that order.
Malicious Falsehood:
155. The ingredients of this tort are well established. It must be shown that the defendant published words which are false and that this was done maliciously, that is to say with the intention to injure the claimant without lawful excuse: Kaye v Robertson [1991] FSR 62, at 67. Special damage must also be proved. But the starting point is the publication of words which are false.
156. The claimants here rely on the combination of the words "Exclusive Photographs" on the front cover of this edition of Hello! magazine and the publication of the photographs themselves. In addition, it is said that the text of the article, by describing the security procedures in force at the event, implied that the photographs were taken with consent. For the defendants, it is argued that the reference to "exclusive photographs" was not false, because those photographs were exclusive to Hello! magazine. Nor is there any evidence that anyone understood the magazine to be saying that the first two claimants had consented to an exclusive interview or to the photographs being taken.
157. At this stage in the proceedings a court has to ask itself whether a jury would find that the words in question were false, either expressly or by implication. One would think that a jury would be inclined, given the frequency with which claims to exclusivity are made by newspapers and magazines, to attach only a limited significance to the words "exclusive photographs". Certainly I am unpersuaded that a jury would conclude that those words meant that Hello! magazine was in a position to publish the only photographs of the wedding. They would be more likely to take the view that the meaning was that these particular photographs were exclusive to Hello! magazine, at least within the United Kingdom. As for the alleged implication that the first two claimants had consented to the taking of these photographs, that is far from being clearly established. It is true that there are two references in the text to security at the wedding, one being to "security so tight" that the ceremony was slightly delayed and the other being to "elaborate security procedures". Neither of those passages nor anything else in the text referred to any restrictions on cameras or photography. A jury would be likely to regard those references to security as being to the normal steps taken at events involving well-known people, such as the exclusion of gatecrashers. They would be unlikely to read them as meaning that the first two claimants had consented to the taking of the photographs in question.
158. That being so, the claimants fail to discharge the burden resting on them of demonstrating that a jury would be likely to regard these statements as false. In those circumstances, it would be quite wrong for an interlocutory injunction to issue to restrain publication on the basis of malicious falsehood.
Interference with contractual relations:
159. It has not been denied in any of the witness statements filed on behalf of the defendants that they were aware of the existence of a contract between the first two claimants and OK! magazine. That by itself is not enough to establish that the defendants are liable in tort under this heading. The ways in which the case is put on behalf of the claimants are, first, that Hello! magazine must have instigated or been involved in the taking of the illicit photographs, and secondly that in any event they must have known when they purchased the photographs that they had been obtained by unlawful means.
160. The evidence as it stands at this stage does not establish that the claimants are likely to make out the first of those propositions. Ms. Cartwright, Publishing Director of Hello! magazine, states that the defendants had no previous knowledge that these pictures were to be taken and she describes how they came into their possession. How that evidence would stand up at any trial is difficult to predict, but there is no direct evidence of prior knowledge on the part of the defendants, and any inference to that effect can only be uncertain at this stage.
161. The second way in which this claim is put may have more prospect of success. It would turn on whether the defendants can be shown to have used unlawful means to interfere with the existing contractual relationships: see Merkur Island Shipping Corporation v Laughton [1983] 2 AC 570, per Lord Diplock at 609. Mr. Tugendhat submits that, even if the defendants did not themselves or by their agents use unlawful means, they must have received the photographs in circumstances in which they must have been aware that those photographs had been taken illicitly. If taken by an employee of a service company engaged for the wedding, that person would have broken his or her contract by so acting. Even if taken by a guest, there could be a breach of confidence because of the request accompanying the invitation not to take photographs and the notice to like effect at the entrance. Such a person might have become a trespasser by entering without complying with that request and the notice.
162. As Mr. Tugendhat acknowledges, this is a difficult area of law, where the precise scope of the concept of "unlawful means" remains to be settled. In the present case, it is impossible to arrive at a judgment at this stage as to whether the controversial photographs were taken by a guest or by an employee of a contractor or indeed by more than one person. There is evidence that some guests were seen by security staff to have cameras even during the course of the reception itself. The legal position in which a guest found himself is far from clear. It is conceded by the claimants that there was no contractual relationship between a guest and any of the claimants, and that must be so, if only because of the almost certain absence of any intent to create such a relationship. It might be that a guest who took a photograph would be held under the applicable law of New York State to be acting tortiously or in breach of confidence in the circumstances of this case, but we have no evidence to that effect. There is then the further problem of the extent to which the recipient of photographs so taken is to be treated as liable in this tort if he was not himself involved in the "unlawful" taking of the photographs or the instigation of it.
163. I can only conclude that the prospect of the claimants eventually establishing liability of the defendants on this basis is too uncertain to warrant the issuing of an interlocutory injunction in advance of publication.
Breach of Confidence:
164. It is this which has formed the main plank of the claimants' case. The claim is put in terms of breach of confidence in the Particulars of Claim, but it was said in argument by Mr. Tugendhat that the case has more to do with privacy that with confidentiality.
165. It is clear that there is no watertight division between the two concepts. Argyll v Argyll [1967] Ch. 302 was a classic case where the concept of confidentiality was applied so as, in effect, to protect the privacy of communications between a husband and wife. Moreover, breach of confidence is a developing area of the law, the boundaries of which are not immutable but may change to reflect changes in society, technology and business practice. I reject without hesitation the submission by Mr. Carr for the defendants that it cannot encompass photographs of an event. It is said that those photographs in the present case did not convey any information which had the quality of confidence, because the guests were not prevented from imparting the same information subsequently, whether in words, by drawings based on recollection or any other means. This argument is unsustainable. The photographs conveyed to the public information not otherwise truly obtainable, that is to say, what the event and its participants looked like. It is said that a picture is worth a thousand words. Were that not so, there would not be a market for magazines like Hello! and OK! The same result is not obtainable through the medium of words alone, nor by recollected drawings with their inevitable inaccuracy. There is no reason why these photographs inherently could not be the subject of a breach of confidence.
166. Since the coming into force of the Human Rights Act 1998, the courts as a public authority cannot act in a way which is incompatible with a Convention right: section 6(1). That arguably includes their activity in interpreting and developing the common law, even where no public authority is a party to the litigation. Whether this extends to creating a new cause of action between private persons and bodies is more controversial, since to do so would appear to circumvent the restrictions on proceedings contained in section 7(1) of the Act and on remedies in section 8(1). But it is unnecessary to determine that issue in these proceedings, where reliance is placed on breach of confidence, an established cause of action, the scope of which may now need to be approached in the light of the obligation on this court arising under section 6(1) of the Act. Already before the coming into force of the Act there have been persuasive dicta in Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 and Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109, cited by Lord Justice Sedley in his judgment in these proceedings, to the effect that a pre-existing confidential relationship between the parties is not required for a breach of confidence suit. The nature of the subject matter or the circumstances of the defendant's activities may suffice in some instances to give rise to liability for breach of confidence. That approach must now be informed by the jurisprudence of the Convention in respect of Article 8. Whether the resulting liability is described as being for breach of confidence or for breach of a right to privacy may be little more than deciding what label is to be attached to the cause of action, but there would seem to be merit in recognising that the original concept of breach of confidence has in this particular category of cases now developed into something different from the commercial and employment relationships with which confidentiality is mainly concerned.
167. Because of these developments in the common law relating to confidence and the apparent obligation on English courts now to take account of the right to respect for private and family life under Article 8 when interpreting the common law, it seems unlikely that Kaye v Robertson (ante), which held that there was no actionable right of privacy in English law, would be decided the same way on that aspect today. It is noteworthy that no claim for breach of confidence was mounted in that case, and that Argyll v Argyll and Attorney General v Guardian Newspapers (No 2) do not seem to have been cited to the court. In the latter decision the House of Lords had made it clear that a duty of confidence could arise from the circumstances in which the information was obtained, so that the recipient was to be precluded from disclosing it to others. Consequently if the present case concerned a truly private occasion, where the persons involved made it clear that they intended it to remain private and undisclosed to the world, then I might well have concluded that in the current state of English law the claimants were likely to succeed at any eventual trial.
168. But any consideration of Article 8 rights must reflect the Convention jurisprudence which acknowledges different degrees of privacy. The European Court ruled in Dudgeon v United Kingdom [1982] 4 EHRR 149 that the more intimate the aspect of private life which is being interfered with, the more serious must be the reasons for interference before the latter can be legitimate: see p.165, para. 152. Personal sexuality, as in that case, is an extremely intimate aspect of a person's private life. A purely private wedding will have a lesser but still significant degree of privacy warranting protection, though subject to the considerations set out in Article 8(2). But if persons choose to lessen the degree of privacy attaching to an otherwise private occasion, then the balance to be struck between their rights and other considerations is likely to be affected.
169. In the present case, it is of considerable relevance that very widespread publicity was to be given in any event to the wedding very soon afterwards by way of photographs in OK! magazine. The occasion thereby lost much of its private nature. The claimants were by their security measures and by their agreements with the service companies seeking not so much to protect the privacy of the first two claimants but rather to control the form of publicity which ensued. This is apparent from the witness statement of Paul Ashford, Editorial Director of OK! magazine, who says that:
"all guests were informed they should not bring cameras because of the exclusive deal that had been entered with OK!"
para. 6. (emphasis added)
170. One does not need to assume that that was the sole purpose of the various security measures. It is enough that it was clearly a very important purpose. Indeed, it was made clear by Mr. Tugendhat in his submissions that what was complained of here was the loss of control over the photographs to be published, leading to damage to the image of the first and second claimants because of unflattering photographs.
171. It may be that a limited degree of privacy remains in such a situation and it could be that at trial the claimants would succeed in obtaining a permanent injunction. There must still be some doubt about that. But even if the claimants had passed that threshold of showing that it is likely that they would obtain an injunction at trial, this court in exercising its discretion at this interlocutory stage must still take account of the widespread publicity arranged by the claimant for this occasion. When that organised publicity is balanced against the impact on the defendants of an injunction restraining publication, I have no doubt that the scales come down in this case against prior restraint. This is a matter where any damage to the claimants can adequately be dealt with in monetary terms. In those circumstances I would allow this appeal and discharge the injunction.
Appeal allowed;
action to be transferred to the Chancery Division;
Costs below to be the Appellants in the case;
Costs of the appeal to be the appellants in any event;
Question of whether there be an inquiry as to damages on cross-undertaking's to be reserved to trial judge.
(Order does not form part of the approved Judgment)