Ever since the Douglases won their interim injunction against Hello! and then saw it discharged by the Court of Appeal in December 2000, the privacy genie has been well and truly out of the bottle. This is a fascinating case to lawyers and laymen alike.
As commercial lawyers, the issue of perhaps the greatest interest is "once it has been 'commoditised', how far can privacy still be protected?". As the law currently stands, it is clear that any protection available to the couple is more likely to come from the law of confidence than from a new, independent right of privacy.
To succeed with breach of confidence they will need to show as the first step that the photographer who sold the pictures to Hello! owed a duty of confidence to the Douglases which he breached. This is where questions of "conscience" and "equity" arise. A factor which troubled the Court of Appeal was the possibility that the photographer (whose identity had not then been established) might not have been a guest (who would have owed a duty) but could have been an intruder "with whom no relationship of trust or confidence had been established".
It should be borne in mind that stringent measures were taken by the couple to prevent unauthorised photographs from being taken at their wedding in New York (e.g. confiscation of cameras from guests, signs stating no cameras or videos were permitted, confidentiality agreements signed by all the staff and extensive security measures and checks). This begs the question: what more could they have done to retain control over their images? There is a distinct possibility in the light of recent cases (including Flitcroft) that the court may find that, even if he was an intruder, the photographer was subject to a duty of confidence.
To celebrities like Michael Douglas and Catherine Zeta-Jones, image management is fundamental to their marketability but is there not a suggestion here of having one's cake and eating it too? For occasions attended by hundreds of your "closest" friends to be regarded as private would surely defeat the purpose. If they had wanted to ensure they retained maximum control over their media image, the Douglases should have made "Our Wedding - the movie" in a Hollywood studio, with all the associated syndication and publication rights instead of opting for a semi-amateur, half-way house.
It is dubious whether this case is really about privacy, bearing in mind that this human right had been bundled up and auctioned off to the highest bidder (save for the right of veto the Douglases retained over the pictures to be published by OK!). This case is more about vanity than privacy.
© Herbert Smith 2003
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