A victory for OK! magazine in its case against Hello! would effectively create a new intellectual property right in confidential information, lawyers for Hello! have told the House of Lords in a case regarding the wedding photographs of Michael Douglas and Catherine Zeta-Jones.
Douglas and Zeta-Jones had sold the exclusive rights to publish approved pictures of their wedding in 2000 to OK!, but Hello! published unauthorised photos, which are the subject of the appeal to the House of Lords.
Hello! has already paid out thousands of pounds to the couple for distress caused by the publication of the photos, which Hello! is no longer appealing. This case has been brought by OK!, which argues that it had rights in Douglas and Zeta-Jones's confidential information.
James Price QC, the lawyer representing Hello!, argued that while wedding photographs can be private, they have never been viewed as being confidential and therefore cannot constitute a trade secret. Hello! may have breached the couple's privacy, but no duty was owed to OK!
OK!'s lawyers argued that the pictures were confidential, and that Hello!, knowing of the deal between the couple and OK!, owed a duty of confidence to the couple and, via the deal, to OK!
"The key issue to be decided is whether a third party, such as OK!, can have enforceable rights in someone else's information," said Gillian Black, a lecturer in commercial law at Edinburgh University who attended the hearings and provided an account of the arguments to OUT-LAW.
"If they can, then the trade in celebrity gossip and 'exclusives' will benefit from an identifiable legal basis – and the value of such information can be expected to rise accordingly," said Black.
OK!'s lawyer Richard Millett QC said that he was not attempting to establish a right of property in photographs of the wedding, but media lawyers have said that if the ruling went OK!'s way then it would effectively create a new law protecting the image of a person.
The case has been running for six years. In 2003 it was found that Hello! had caused OK! commercial damage and was ordered to pay £1 million in damages. Hello! successfully challenged that ruling and was awarded £2 million damages, at which point OK! sought and was granted permission to appeal to the House of Lords, the highest court in England.
Legal observers believe it could be March 2007 before a verdict is given, in a case which could fundamentally alter English confidentiality and privacy law.