OK! Perhaps it was Hello! that won the battle, but lost the war

The Times, Tuesday April 15, 2003

So it was a private wedding after all. The best showbiz trial since the heady days of the early1990s, when London was the libel capital of the world, has seen Michael Douglas, Catherine Zeta-Jones and OK! vanquish the latter's arch-rivals, Hello!, which had printed unofficial photographs of the Douglasses' wedding.

But in finding for the claimants, Mr Justice Lindsay has not picked up the slow-burning torch of privacy. Instead, the law of confidence was put under the spotlight, and gave a star turn. Though the court has deferred the award of damages to a later date, for now, the Douglasses and OK! can celebrate. As Maninder Gill, OK!'s in-house lawyer, says: "This is a fantastic result. We never wanted to go trial but having had to pursue the matter, we are delighted to have been completely vindicated."

But Chris Hutchings, a partner at Charles Russell and Hello!'s lawyer, says that far from feeling crushed, the mood in the Hello! camp is buoyant. Hutchings says that the claimants lost their crucial claim in privacy, and won on only four of their 13 heads of claim, the two most important being in confidence. Here, according to Hutchings, new law has been created. "This is the first time that an exclusive feature has been held to be a trade secret. It could set a dangerous precedent and, in an industry where spoilers are commonplace, be used against the very people who have made new law."

Two contrary views, from two lawyers who both learnt their trade at Peter Carter-Ruck and Partners, the firm that seemed to handle all the glamorous libel actions of the 1990s. To disentangle the spin, it may be useful to look at the history.

An exotic collection of defendants appeared before the court. Along with Hello! as the corporate defendant, there was was Eduardo Sanchez Junco, its controlling shareholder, the Marquesa de Varela, a society fixer now as famous for her 200 pet dogs as her contacts book, and a paparazzo, Philip Ramey. The offending photographs were taken by tuxedo-wearing, uninvited Rupert Thorpe, son of former Liberal leader Jeremy, himself no stranger to the courtroom.

But the defendants' luminescence was dwarfed by that of their antagonists. Douglas and Zeta-Jones are known the world over, and inhabit a realm where £1million is "not that much." So too, Richard Desmond, the proprietor of N&S. Desmond features regularly in The Sunday Times' rich list, and his publishing empire – of which Gill is overall Legal Director - now includes The Express titles, OK! and a rejuvenated Daily Star. Over the years OK! has acquired a number of celebrity exclusives, including an interview with Michael Jackson and the wedding of David and Victoria Beckham.

The wedding of Michael Douglas and Catherine Zeta-Jones in November 2000 was, however, set to eclipse even that of Posh 'n' Becks. N&S paid handsomely to secure exclusive photographic rights in the wedding and reception, and guests were asked not to take photographs or video footage. It is fair to say that there is no love lost between OK! and Hello!, and N&S would have taken satisfaction from the fact that a bid from Hello! was rejected. And then in sneaked Rupert Thorpe, with his hip-held camera.

Despite an attempt to restrain publication, the unauthorised photographs appeared in Hello! three days before OK! was due to come out, with Hello! increasing its print run from 650,000 to 750,000. The Court of Appeal held that an injunction was inappropriate and that the case should be tried on its merits. The claimants sued for breach of confidence, breaches of the Data Protection Act 1998, invasion of privacy and interference with contractual relations, in claims worth £500,000 (for the Douglasses) and £1.75million (N&S).

Early in the trial, the confidence and privacy claims looked to have taken a blow when Lindsay J made it clear that he considered weddings to be public occasions. But ultimately, he found that "the wedding was not a celebrity event" and accepted Miss Zeta-Jones's evidence "that it was not intended to be one." It was, for the judge, "as private as was possible consistent with it being a socially pleasant event." If this was crucial, so, it seems, was Hello!'s conduct. The Human Rights Act 1998 requires courts to consider any relevant industry codes, and so Lindsay J turned his attention to the Code of the Press Complaints Commission (PPC). He found that Hello! broke the PPC Code. As his judgment says, "The very same principle in the Code that provides that the use of long lenses to take pictures of people in private places without their consent [is] unacceptable must… inescapably also make the surreptitious use of short lenses to take pictures of people in private places without their consent equally unacceptable."

But the court found that the law of confidence protected the claimants' rights, rather than a right to privacy. Indeed, anyone who hoped that a privacy law would have a rather public baptism will have to wait. Instead, the Douglasses' appearance on their wedding day had a "quality of commercial confidentiality" – the 'trade secret' to which Hutchings referred.

Razi Mireskandari, a media lawyer with Simons Muirhead & Burton, says he was "surprised Hello! thought they could get away with it. They didn't want to pay for what they knew was a valuable commodity." But Mireskandari is relieved that the court has stopped short of recognising a formal right to privacy. "It is important that the law does not blunt the public's right to be shown the truth – warts and all. Thankfully this case has not done so."

Damages and costs will be assessed at a hearing in the summer. Gill says N&S is "optimistic" the full sums claimed will be awarded. Hutchings says there is "every likelihood" Hello! will appeal. It may be some time before the two former colleagues are able to reminisce about those libel actions of old. Meanwhile, the debate over celebrities and their right to privacy rolls on to its next performance. Coming soon – Naomi Campbell v. The Mirror, all the way from the House of Lords…