Douglas v Hello - New ‘Image Right’ Via The Back Door?

Celebrities, artists and businesses of all types have reason to celebrate the recent House of Lords decision in Douglas v Hello!

The ruling [2nd May 2007] confirmed that the law of confidence is a powerful tool for the protection of intellectual property rights.

English law doesn’t recognise ‘image rights’, so celebrities and the like previously relied heavily on trade marks and copyright to control their image and brand.

But now, those possessing information or arranging events which are commercially valuable (for example, when the media are prepared to pay a fee for access) can use confidentiality agreements to sell and control access, knowing the courts will enforce them and award damages, if they are breached.

The beauty of the law of confidence, as contrasted with contract law, is its potential to bind everyone, not just contracting parties. It is therefore a powerful weapon in your intellectual property armoury.

By making it clear that certain information, or an event, is confidential, people can name their price before allowing access, and control publication or broadcast, using contracts.

Lord Hoffmann in the House of Lords said there was no question in his opinion of “creating an ‘image right’ or any other unorthodox form of intellectual property”, that is effectively what this confidence ruling does.

It empowers individuals and businesses to exert real control over their media image in relation to commercially valuable information and events, and thereby gives effect to an ‘image right’ in English law, in all but name.

The case, as is well known, concerned the wedding of Catherine Zeta-Jones and Michael Douglas. OK! magazine agreed a contract with the couple, and paid £1m, for the exclusive right to publish photographs of the event. All others attending were forbidden from taking photographs. However, a freelance photographer infiltrated, and took unauthorised photographs which he sold to Hello! magazine.

Despite OK!’s exclusivity agreement, Hello! published the unauthorised photographs on the same date as OK! published the authorised ones, denting OK!’s circulation figures.

The judge awarded OK! a total of £1m damages, but the Court of Appeal overturned that on the ground that the obligation of confidence for the benefit of OK! attached only to the photographs which the Douglases authorised it to publish, not to the unauthorised ones published by Hello!.

In the House of Lords, however, Lord Hoffmann preferred an approach that made “commercial sense” and took the broad view that the confidence covered the entire event. He said OK! was entitled to control access to the photographic opportunity itself, the wedding, not just to certain authorised photographs.

Moreover, he said the wedding had the “necessary quality of confidence” because of the way unauthorised photography was banned, and Hello! knew this but nevertheless breached the confidence, to OK!’s detriment.

Lord Hoffmann decided the couple were entitled to protect their commercially confidential information via a contract with OK! simply because it was “information of commercial value”.

He said: “The point of which one should never lose sight is that OK! had paid £1m for the benefit of the obligation of confidence imposed upon all those present at the wedding in respect of any photographs of the wedding.”

He added: “It could have been information about anything that a newspaper was willing to pay for. What matters is that the Douglases, by the way they arranged their wedding, were in a position to impose an obligation of confidence. They were in control of the information.”

He said that being a celebrity, or publishing a celebrity magazine, were “lawful trades”, and there was no reason why they should not benefit from protection under the law of confidence.

On this basis, it is now possible to sell and control access to many different types of information and events, protected by the newly invigorated law of confidence. Creative types should have no difficulty in applying the law creatively to enhance their image in a variety of settings.

A note of caution, however. Two of the five law lords disagreed with Lord Hoffmann’s approach – so there’s still potential for legal debate and revision of the law in future.

And, of course, even if Lord Hoffmann’s approach holds fast, it doesn’t confer absolute control. One still cannot prevent publication of information by someone who receives it otherwise than under an obligation of confidence, or where there is an overriding public interest in communicating it to the public at large.

Published 11/06/2007.