After a hard-fought trial Mr Justice Lindsay in the High Court found for the Douglases and OK! Magazine, awarding OK! approximately £1m in damages for its commercial loss caused by the Hello! spoiler and awarding the Douglases £14,750 for distress and inconvenience.

The Court of Appeal subsequently reversed that decision so far as the magazines were concerned, and OK! Magazine’s appeal against the Court of Appeal’s decision has now succeeded in the House of Lords by a majority decision.

Lord Hoffmann delivered the leading judgment, finding that the wedding photographs at the centre of the dispute were confidential – in effect a trade secret that both the Douglases and OK! Magazine were entitled to protect. The only outstanding issue will now be the delicate question of who pays the costs, which are likely to amount to around £4m, as neither side seems inclined to fight the case out in Europe.

Lord Hoffmann took the view that OK!‘s exclusive right to publish photographs of the Douglases’ wedding was one that the courts should uphold. Although other Law Lords were concerned that the images in the photographs were not intended to be kept secret, but to be published by OK! Magazine, Lord Hoffmann adopted a more pragmatic and commercial view:

“I see no reason why there should not be an obligation of confidence for the purposes of enabling someone to be the only source of publication if that is something worth paying for.”

He went on to draw an analogy with a newspaper’s power to control information within its own ranks:

“Why should a newspaper not be entitled to impose confidentiality on its journalists, sub-editors and so forth to whom it communicates information about some scoop which it intends to publish the next day?”

Lord Hoffmann recognised that in this media age the information contained in the photographs had commercial value, over which the Douglases could impose an obligation of confidence. He specifically emphasised that this did not create “an image right”, although celebrities will doubtless attempt to do just that with the decision.

He went on to recognise that some might disagree with a decision that allowed images of a wedding to be “sold in the market the same way as information about how to make a better mousetrap”. However, as he pragmatically observed:

“Being a celebrity or publishing a celebrity magazine are lawful trades and I see no reason why they should be outlawed from such protection the law of confidence may offer.”

This ruling will come as no surprise to lawyers from America or continental Europe, where image rights are generally better protected. The decision is also in line with the greater protection for privacy which the appellate courts have been recognising, and is fully consistent with the commercial activities of the media which trades such images and information on a daily basis. There will be fewer “spoilers” in future because they will now be more dangerous to run.

In that respect, the judgment is largely neutral for the press, merely making the unattractive but widespread practice of “spoilers” less attractive for all of its members. It does, however, mean that those who have exclusive images and information to sell to the press, and those who trade in such commodity, have had their hands strengthened. This is because, like any other intellectual property, its value in the market depends very much on the extent to which the law will protect it.

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This update is © Swan Turton and is for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court.

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