A Right to Privacy?

The recent, much anticipated, judgment of the court in Douglas and Others v Hello! Limited and Others [2003] EWHC 786 provides welcome clarification of the position in respect of the development of a right of privacy under English law.

The facts of the case related to the wedding of Michael Douglas and Catherine Zeta-Jones (the Douglases), two well-known film stars, in November 2000. The Douglases sold exclusive photographic rights of the event to OK! magazine. However, soon after the wedding it transpired that a photographer had eluded stringent security measures and surreptitiously taken photographs which were then bought for publication by a rival magazine to OK!, Hello! The Douglases and OK! sought and obtained an injunction to restrain publication, but the Court of Appeal subsequently lifted the injunction. The Douglases pursued their claim in damages for, inter alia, breach of confidence, breach of the Data Protection Act 1998, and under a possible privacy law.

Breach of confidence

The trial judge, Mr Justice Lindsay, noted the threefold test required to establish a successful claim in confidence (set out in Coco v AN Clark (Engineers) Limited [1969] RPC 41), namely that (1) the information must have the necessary quality of confidence about it, (2) the information must have been imparted in circumstances importing an obligation of confidence, and (3) there must be an unauthorised use of that information to the detriment of the party communicating it.

Lindsay J also noted that a number of recent domestic cases, which all included significant consideration of the modern law of confidence in relation to personal confidence, represented a fusion between the pre-existing law of confidence and rights and duties arising under the Human Rights Act 1998 (HRA) (which effectively incorporates the majority of the European Convention on Human Rights (ECHR) into UK law).

Amongst the general principles which the judge derived from these cases was that breach of confidence was an established cause of action whose scope needed to be evaluated in the light of obligations falling upon the court under section 6 of the HRA (which requires public authorities, including the court, to act in a way which is compatible with ECHR rights). That could be achieved by regarding the rights conferred by Articles 8 (the right to privacy) and 10 (the right to freedom of expression) of the ECHR as absorbed into the action for breach of confidence. It would be...