Spoilers are part and parcel of the highly competitive print media industry. Whether or not they are going to result in the publisher of the spoiler paying damages to a rival depends on the form of the spoiler.
A cleverly put together piece comprising material that you have lawfully obtained from the public domain or your own sources may leave the publication with the “authorised” story protesting indignantly, but without a claim for damages.
On the other hand, if you know in advance that the subject of the spoiler wants privacy, has taken all possible steps to avoid press intrusion and has reached an exclusive agreement with a rival publication, and you publish photographs from within the event, the law considers your conscience to be “tainted” and you may be liable for the resulting commercial losses of the publication that has the authorised exclusive.
Hello!’s spoiler of OK!’s coverage of the wedding of Michael Douglas and Catherine Zeta-Jones fell into the latter camp. Hello! is now counting the cost. On top of the £1.03m damages it has paid to OK!, it has now been ordered to pay 75 per cent of the Douglases and OK!’s legal costs of the liability trial and 85 per cent of the damages trial.
The case has not made new law, but it is a reminder to editors of the principles governing this area of the law. The basis upon which the judge found Hello! had breached the claimants’ rights was not controversial. Hello! made several unsuccessful attempts to obtain the exclusive rights to the wedding photographs, in the course of which it was told that the couple’s main concern was that they had control of their wedding and that there would be no press intrusion. The couple also made it clear to family and friends that there was to be no private photography at the wedding.
After losing out to OK!, Hello! put the word out that it wanted pictures of the wedding and it was able to buy photographs snatched from inside the wedding – perfect spoiler material.
As OK!’s witness Kelvin MacKenzie said at the damages hearing: “If you were the picture editor of Hello!, you would have thought you had died and gone to heaven.” The problem for Hello! was that it was well aware that the photographs had been taken surreptitiously. The judge found the photographs were published in breach of a duty of confidence owed to the Douglases and OK!.
It is relatively unusual for such cases to go to a full trial on the issue of damages. The judge was satisfied that OK! had suffered a very significant amount of lost sales and this formed the bulk of the damages award against Hello!.
Spoilers will remain a feature of the industry. But this case illustrates how you must take care. It is unlikely that anyone at Hello! still thinks they have died and gone to heaven.
Catherine Hurst is an associate at Addleshaw Goddard, the solicitors who act for the Douglases and OK!