The Douglases and OK! v Hello!: the photo finish
27 January 2003
Roll up, roll up, the privacy law circus is back in town. Next week Catherine Zeta Jones and Michael Douglas are bringing a case that is the best contender for the 'What's the Point?' award since German Chancellor Gerhard Schroeder won an injunction stopping German publishers writing that he might have dyed his hair.
In an action that seems to view the right to a private and family life in the 1998 Human Rights Act (HRA) from within a Blackpool hall of mirrors, the Douglases are claiming that unauthorised photos taken by Hello! magazine of their wedding in 2000 were a gross affront to their privacy, even though they sold startlingly similar images to rival celebrity sycophants OK!. A seriously gross affront to their privacy: the Douglases are expected to claim £1.5m in damages while fellow claimant OK! is going for £2.5m.
One could argue that the Hello! photos gave the couple more privacy, as being unauthorised they were a lot more blurred. But that would be a fatuous way of looking at this case - another example of millionaires' tantrums clogging up our legal system.
Privacy aside for a moment, the Douglases and OK!, both represented by Theodore Goddard and Michael Tugendhat QC of 5 Raymond Buildings, do have a right to be cross.
Hello!'s publication scuppered a superbly crafted rights deal, took pictures that the Douglases agreed to protect as a trade secret as part of the deal and lost OK! its exclusive, as well as newsstand and advertisement revenue. At an interlocutory hearing last week, it also emerged that Hello! may have lied in court in 2000 when the Douglases and OK! brought the original injunction, which Hello! successfully overturned on appeal.
The Douglas camp is alleging that, while Hello! originally claimed it did not itself send the paparazzi to the church, there is evidence that the magazine destroyed emails and invoices which, if offered up to the court, could have proven otherwise.
But such possible skulduggery does not detract from the crazier aspects of the case. The Douglases think they can couple the fact that their wedding photos were commercial and trade secrets with the idea that they were private and confidential, meaning redress can be obtained under the HRA.
If they win, they will be the first public figures to succeed on a privacy point in a High Court action. The ramifications are serious. Perhaps public figures desirous of more control over the commercial distribution of images of themselves will be able to call on the HRA to do so. This could stifle any publisher wishing to distribute images not taken officially.
Those in the Hello! camp, represented by Charles Russell and Tugendhat's 5 Raymond Buildings stablemate James Price QC, will argue that allowing public figures to use the HRA to protect their image rights could prevent publication of images that are in the public interest.
They are even saying that, should the Douglases win, the Government will have to write new legislation establishing how far the concept of legally protected privacy should go. This case began in 2000 with an injunction brought by the Douglases and OK!, but was later overturned in the Court of Appeal, where a call was made for this to happen.
The irony of a glossy, Spanish-owned magazine influencing government legislation will not be lost. But in order to enjoy the circus, we must first suspend disbelief. The case starts on 3 February, and the Douglases are expected to appear on the second day of the hearing. Last one to the High Court buys the candy floss.
Some of the biggest court battles going on at the moment are taking place entirely behind the scenes, with judges, the Lord Chancellor's Department (LCD) and the Department of Trade and Industry (DTI) involved in a never-ending tug-of-war over funding and development of the court system.
This time, the judiciary, which has long called for specialist courts manned by expert judges, is after a new division of the High Court just for competition matters.
As revealed by The Lawyer this week, one senior and very high-profile judge, who unfortunately cannot be named, has vocally thrown his weight behind the campaign, albeit anonymously.
But many competition lawyers, in agreement with the DTI and the LCD, just don't see the point of building a new court, as the Enterprise Act has already provided for extra judicial time to be given over to competition matters.
The act establishes a new role for the Competition Appeals Tribunal (Cat), which replaces the appeals tribunal of the similarly titled Competition Comm-ission Appeals Tribunal.
The Cat, headed by Sir Christopher Bellamy, will become a court of appeal from the decisions of the Director General of Fair Trading. One of its powers will be to award compensation to small companies and private individuals who have been injured by abuse of the competition rules.
CAT fans say it is a better alternative to a competition court, as it will allow those affected by cartels to avoid litigation. According to Addleshaw Booth & Co competition partner Adam Aldred, the whole point of the new procedure is that it is simpler and cheaper for innocent victims of competition law abuse to get redress.
This does not absolve the worries of those parties who either want to take their competition cases to the High Court out of principle or whose cases relate to any of the myriad of civil issues the CAT does not rule on.
As this week's story reveals, the DTI is incredibly flippant on this point. According to Adam Brown at the DTI, "the view, particularly from the LCD, is that the world is full of new areas of the law, and if we created new courts all the time it would fall apart."
That a body of the Government, which crafted the Enterprise Act so carefully, views competition law as just one of many new areas of jurisprudence simply doesn't wash.
As The Lawyer's City editor Helen Power points out in this issue, the CAT is only a part-time judicial body and has neither the power nor the profile of the High Court. It is only a partial solution and needs to be supplemented. The real obstacle to the creation of a competition court is that the LCD doesn't have the money.
Remember how much egg the LCD got on its face last year when it was forced to shelve plans for a new commercial court for financial reasons? Having just wiped off the albumen, don't expect Lord Irvine to even entertain this proposal.