Last Friday, 7 November 2003, Mr Justice Lindsay awarded Catherine Zeta-Jones and Michael Douglas damages of £14,600 for breach of privacy and OK! damages of £1,033,156 for Hello! spoiling its exclusive rights to cover the ZetaJ0nes-Douglas wedding.
Hello! had bought photographs of the wedding from an unauthorised photographer for £125,000. When the Douglases were told of the unauthorised photographs, they and OK! sought an injunction to prevent publication. This was initially granted but then overturned by the Court of Appeal. It held that the balance of convenience and, in particular, the weight to be accorded to free speech, was in favour of Hello! being allowed to publish.
The claimants then pursued their claims, resulting in the damages awarded last Friday. Ms Zeta-Jones and Douglas claimed for the distress suffered for breach of their confidentiality/privacy and under the Data Protection Act 1998. OK! claimed for the loss of expected revenue from the two special wedding issues and for the wasted costs incurred in rearranging the preparation and transit of the wedding photographs.
The main battleground concerned the amount to which OK! was entitled for its loss of revenue if Hello! had not spoiled its exclusive.
The judge considered a number of complex questions, including whether there definitely would have been two special wedding issues; what sales would probably have resulted; the cost of those sales; what advertising and related income would have arisen; and how far the shortfall in sales of OK! could be attributed to Hello!.
The judge found that in all probability there would have been two special wedding issues. He worked out the net gain for each issue and slightly discounted this. He awarded extra damages of £6,450 because OK! had to rearrange production and transmission of the photographs to deal with the Hello! crisis. This resulted in a total damages award of £1,033,156.
Of more general significance is how little Ms Zeta-Jones and Douglas were awarded. The judge held that they could not claim from Hello! for the distress they had suffered knowing that there was an intruder at their wedding because they had themselves been responsible for the security arrangements.
However, he found that Hello! was responsible for the distress occasioned by the publication of the unauthorised photographs.
Looking at other recent damages awards for breach of confidence/ privacy, he found that £3,750 each to Zeta-Jones and Douglas was sufficient.
He also awarded a nominal £50 to each for breach of the Data Protection Act 1998.
Under English law, it clearly remains difficult for claimants to obtain significant compensation for distress caused for invasion of confidentiality/privacy.
Jennifer McDermott is a partner in the technology, media and telecoms group at Lovells