Douglases score four out of 13

So. At the end of the day, just who did win the epic High Court battle: Catherine Zeta-Jones and Michael Douglas or Hello! magazine?

Lawyers for Zeta-Jones and Douglas came out of court issuing statements declaring that the couple “deeply appreciate that the court has recognised the principle that every individual has the right to be protected from excessive and unwanted media intrusion into their private lives”.

However, Hello!’s statement began: “We are very pleased that the vast majority of the claims against us have been thrown out.”

In any civil court action, the real winner has to be regarded as the one who takes home the cash. In this case, that will ultimately be Zeta-Jones, Douglas and the publisher of Hello!’s rival OK! So from that standpoint, they are the winners. Far from outright, however. They won the war, but they lost a number of battles along the way – hence the post court case journalist’s nightmare, with each side more or less declaring victory.

In a nutshell, Mr Justice Lindsay found in favour of Zeta-Jones and Douglas as far as breach of confidentiality was concerned.

He was satisfied the unauthorised snatched paparazzi photographs taken at their wedding and published by Hello! fell foul of the laws governing confidence and that, from that point of view, the couple and OK!, which had done a deal to publish the authorised wedding photographs, were entitled to damages and, if necessary, an injunction banning further publication.

The level of damages is to be decided at a later hearing, along with the question of who pays the legal costs, which have been estimated at more than £3m.

Yet the judge did not find publication of the photographs constituted a breach of privacy, as had been claimed. And he refused to rule that damages should be at the highest – exemplary or aggravated – level. He also cleared Hello! of conspiracy, of commissioning unauthorised photographs, of interference with business and of intention to damage the Douglases.

The judgment, a mammoth 47,500 words of it, does contain important guidance on these aspects of media law. From the point of view of his approach to the privacy claim, the decision must be viewed as good news for the media, as must his approach to the call for exemplary and aggravated damages.

Good news apart, the confidentiality ruling must give pause for thought in the photography fraternity. That was the winning card and, even though damages are likely to be less than the claimants hoped for, the case still looks set to cost Hello! a packet.

On the question of confidentiality, the judge said he had struck a balance between freedom of expression and confidentiality and in doing this had taken into account the Press Complaints Commission Code of Practice.

He said he bore in mind that authorised photographs would become available to the public through the deal with OK! and that the Hello! pictures were of poor quality. That, however, did not persuade him there had been a breach of confidentiality, he said. What did was the provisions of the PCC code.

“There had been an intrusion into individuals’ private lives without consent. That intrusion was known or must be taken to have been known to Hello!, as was also that it amounted to a failure to respect the Douglases’ private and family lives,” he said.

Photographer Rupert Thorpe, 33-year-old son of former Liberal party leader Jeremy Thorpe, wore a tuxedo as if he were a guest at the wedding. Given that he had not been invited and obtained unauthorised photographs by misrepresentation or subterfuge, the code was broken and Hello! either knew or would have known had it not closed its eyes to the fact that this was the case, he said.

Provisionally, he considered Hello!’s rights to freedom of expression were outweighed by the rights of the Douglases and OK! to confidence. Ultimately he said he considered Hello! had acted “unconscionably” and that in the light of what had happened, the Douglases and OK! were entitled to damages for breach of confidence.

Turning to the question of privacy, however, he said he declined an invitation by counsel for the Douglases to hold that there is an existing law of privacy under which they were entitled to damages and dismissed that aspect of the claim.

Use of the pictures was also said to have breached the Data Protection Act on the basis of transmission methods. On this point, the judge said he did consider there had been a breach but did not consider this would attract anything more than nominal damages. Nor did he consider claims relating to interference with business and conspiracy were justified.

On the claim for higher-level damages, he said exemplary damages were appropriate in cases where behaviour gave rise to “a sense of outrage”, but that his reaction to what had taken place was not one of outrage.

As far as aggravated damages were concerned, he said the Douglases claimed them for distress and in doing so relied on the alleged “flagrancy” of Hello!’s conduct – the fact that when a temporary injunction banning publication of the pictures was lifted, Hello! immediately published and the pictures consequently appeared in national papers in the UK. He concluded: “Given that there was, in any event, to be very extensive photographic coverage of the wedding, albeit as selected by the Douglases, I do not see the behaviour of Hello! as so flagrant or offensive as to justify an award of aggravated damages.”

Roger Pearson

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