The House of Lords’ decision in the case of Douglas v Hello (OBG and others (appellants) v Allan and others (respondents), Douglas and another (appellants) v Hello and others (respondents), Mainstream Properties (appellant) v Young and others (respondents) [2007] is a significant development in the law of confidentiality and has provoked some heated debate among lawyers. There appears to be a divide between those who view the decision as bringing a welcome extension to the law of confidentiality and those who are concerned it gives rise to confusion in the courts over what exactly constitutes confidential information. From the judgment itself it would seem that Lord Hoffman takes the view that there is neither extension nor confusion. The judgment is simply a restatement of established principles.
The facts of the case have been well-documented: there was competition between rival magazines Hello! and OK! to secure the photographs of the wedding of Catherine Zeta-Jones and Michael Douglas. The Douglases eventually signed an agreement with OK!, which effectively gave them exclusive rights to photographs of the day. Guests at the wedding were strictly forbidden from taking photographs. However, despite tight security at the event, a paparazzi photographer was able to gain entry, take a number of, in the words of Lord Nicholls, “indifferent” photographs and sell them to rival publication Hello!. The photos were published on the same day as the official ones through OK!, thus spoiling the agreed exclusive. Subsequently, the Douglases and OK! brought a claim against Hello! for breach of confidence and interference by unlawful means (although the latter issue is not dealt with here).
