DOUGLAS v HELLO and BREACH OF CONFIDENCE

Paul Nicholls

As well as seeking to explain the economic torts in the conjoined OBG v Allan,
Douglas v Hello and Mainstream Properties v Young appeals [2007] 2 WLR 920, the House
of Lords had also to deal with the cause of action for breach of confidence in the Douglas v
Hello appeal.
By the time the case reached the House of Lords, the battle was just between OK
and Hello. As will be recalled, Michael Douglas and Catherine Zeta-Jones had agreed a deal
with OK which gave that magazine exclusivity over the photographs of their wedding. In return
for £1 million, Douglas and Zeta-Jones would permit OK to publish photographs taken by a
photographer whom they (the Douglases) had hired. The Douglases were to retain the rights
in any photographs which were not published. A freelance photographer managed to gain
access to the wedding and take some surreptitious photographs. They were not of the same
quality as the official photographs, but nor were they of any embarrassing moments.
The unofficial photographer sold his pictures to Hello which published them. Its sales
for that edition were 150,000 more than usual.
At earlier stages of the case, both OK and the Douglases sued Hello relying on a
number of causes of action. By the time of the appeal to the House of Lords, the Douglases
were no longer parties. OK relied on claims for damages for breach of confidence and for
intentionally causing loss to OK by unlawful means.
All were agreed that the latter claim failed. So the only way in which OK could recover
damages was by success on its claim for breach of confidence. The Judge (Lindsay J) had
upheld that claim. The Court of Appeal (Lord Phillips, Neuberger and Clarke LJJ [2006] QB
125) rejected it.
A majority of the House of Lords (Hoffmann, Hale and Brown) allowed the appeal an
restored Lindsay J’s judgment. Lords Nicholls and Walker dissented.
The opinion of the majority was given by Lord Hoffmann. He approved the criteria
which needed to be satisfied in order to establish a cause of action for breach of confidence
which were set out by Megarry J in Coco v AN Clark [1969] RPC 41, 47:
• the information had to have the quality of confidence;
• it had to be imparted in circumstances of confidence; and
• there had to have been an unauthorised use of it to the detriment of the party
communicating it.
Lindsay J had held that each of these conditions was satisfied. The photographs of
the wedding were confidential – had the quality of confidence – because none was publicly
available. There were circumstances of confidence because everyone attending the wedding
was told that they were not to take photographs or communicate them. Importantly everyone
knew that this obligation of confidentiality was imposed for the benefit of OK as well as for the

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Douglases. This was important because the publication of the photographs was to the
detriment of OK who lost out on the exclusivity for which they had contracted. Here the
detriment was not to the party communicating the information, but to one of the parties for
whom it had been agreed the information would be kept confidential.
The Court of Appeal took a far stricter approach. It reasoned that OK retained
confidentiality only in respect of the photographs which the Douglases agreed it should
publish. (They retained a right of privacy in remaining photographs.) But there was no
confidentiality in the photographs which had been taken surreptitiously. Therefore no cause of
action could lie for breach of confidence.
Lord Hoffmann, giving the principal speech for the majority, agreed with Lindsay J.
The issue turned on understanding what it was that OK paid £1 million to keep confidential.
The answer to that was photographic presentation of the wedding. This meant that there was
an obligation of confidence – in favour of OK as well as the Douglases – in respect of any
photograph of the wedding. The Douglases, because they controlled their own wedding, were
able to impose obligations of confidence. As they did so, they could also extend the benefit of
the confidence to a third party – OK. This reinforces the point that the interest at stake was
not their privacy: the pictures published were not embarrassing, for example. What had to be
identified was a commercial secret. The commercial secret was that for which OK had paid
the Douglases.
Once one recognised that what was confidential was pictures of the wedding,
publication of any such pictures, other than by OK, would breach that confidence. It was not
just the pictures which the Douglases had agreed should be taken that were protected. That
which was to be kept confidential was any photographic representation of the wedding. That
would be the same if the pictures taken by the official photographer were leaked or if, as
happened, someone else took a photograph. The view of the Court of Appeal that all that
was protected was the photographs supplied by the Douglases made ‘no commercial sense’.
The minority in the House of Lords held that there was no breach of confidence
because there was not confidentiality in the photographs published by OK. Lord Nicholls and
Walker did not take the same view as the Court of Appeal, that confidentiality resided only in
the photographs published by OK. They held that the publication of the approved photographs
removed any confidentiality. Lord Walker drew an analogy with Gilbert v Star Newspapers
(1894) 11 TLR 4 where W S Gilbert obtained an injunction to prevent publication of the plot of
a forthcoming opera – but only until its first night; and Shelley Films v Rex Features [1994]
EMLR 134 where an injunction against publication of gruesome details of the film ‘Mary
Shelley’s Frankenstein’ obtained only until the film’s release.
Here, it was argued, the publication of photographs by OK deprived the information in
question of its confidentiality and so the publication of its photographs by Hello – even though
at the same time – was not in breach of confidence.
Lords Nicholls and Walker were also concerned that if a claim to confidentiality were
upheld in this case, it would come close to giving celebrities a monopoly or even a form of

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intellectual property in their images, contrary to the general position in law. In this case, the
effect of the majority view was to confer such a monopoly right on OK.
Lord Brown supported Lord Hoffmann’s rejection of the view that publication deprived
the confidential information – which he characterised as being information about how the
wedding looked – of its confidentiality. He held that the confidential information consisted of
‘no less of each and every visual image of the wedding than of the wedding as a whole’.
Because OK had bought the exclusive right to be able to present in photographic form how
the wedding looked, they could have published photographs in stages – the bride and groom,
the guests, the presents – and still the confidentiality would have subsisted.

Douglas v Hello is a case with unusual facts. But it contains several useful pointers
for commercial lawyers seeking to give effective protection to confidential information.
First, define your information with care. Do not rely too heavily on a court later finding,
or not finding, confidence in a particular set of facts.
Second, one’s ability to identify confidentiality in the particular category of information
which one seeks to protect will be improved if the client takes steps to preserve the
confidence of the information he has defined as confidential. What happens in practice may
thus be just as important as the drafting of terms. It was important that the Douglases told
people not to take photographs and employed security to prevent them doing so.
Third, the right to enforce obligations of confidence may be sold to or shared with a
third party. However, once again it will need to be made clear what benefit the third party is to
enjoy.

June 2007

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