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Key Words: Tolley v Fry
Case Name: Advertising messages as libel
Court: House of Lords (Viscount Hailsham, Viscount Dunedin, Lord Buckmaster, Lord Blanesburgh, Lord Tomlin)
Citation:  AC 333
Case No.: -
Importance: Libel and character merchandising; the ability of an advertisement to be libellous; the domain of the judge and the domain of the jury distinguished
Facts: Tolley was a well-known amateur golfer. During the 1920s if an amateur golfer entered into a commercial contract for benefit, that could harm the reputation and status of the golfer. Fry, without the consent of Tolley, had used a caricature of Tolley in several advertisements in order to promote chocolates.
At first instance the judge held that this was capable of being libellous leaving the actual decision to a jury. This body found in favour of the claimant and awarded damages. The Court of Appeal found that the advertisement was not capable of producing libellous effects. To their mind, the case should not have been brought before a jury. They reversed the judge’s decision and dismissed the action.
The House of Lords, in a decision of four against one, restored the original decision in favour of the claimant but ordered a new trial concerning the level of compensation.
Decision and Reasoning: Viscount Hailsham delivered the major opinion: An action of libel would succeed if the publication complained of produced at least some of the meanings attributed to it in the innuendo, and those meanings were defamatory. (p. 337)
But the question in the case was a procedural one: Was the judge allowed to ask a jury whether the statement was false and defamatory? The legal answer to this was in the affirmative if the statements were capable of being libellous. So neither the Court of Appeal nor the House of Lords were asked to decide whether the advertisement amounted to a libel. The question was rather whether the judge could have ruled out that possibility.
The House of Lords did not think the message delivered as such was a false one. It was only the context of an advertisement that the reader was given a wrong impression which was defamatory to the claimant. The case thus turned on the question as to whether some readers might have thought that Tolley had consented to this advertisement. The dissenter, Lord Blanesburgh, held that the case was one of mere vulgarity: No decent man could think that such a renowned sportsman as Tolley would have consented to such an advertisement. (346 et seq.)
The majority however placed weight on the fact that Fry was a renowned producer of chocolates. Not all readers would have thought that such a well-known maker of chocolates would have had the effrontery to use a portrait of a man and thus his reputation to advertise goods without first seeking his assent. (Lord Buckmaster, 344) Therefore, the majority thought that these questions had to be decided by a jury. (See Lord Buckmaster, 342 et seq.)
Libel is a possible remedy against unwanted character advertising, if some further element of an individual’s reputation, such as status as an amateur golfer, were endangered. The case also shows the limits of this action as mere vulgarities are non-actionable.
Case Name: McCulloch v Lewis A. May Ltd. (“Uncle Mac”)
Key Words: Denial of commercial personality rights by way of an action for passing off in a case of false endorsement
Court: High Court Chancery Divisions (Wynn-Parry J.)
Country: United Kingdom
Citation:  2 All E. R. 845;  65 R.P.C. 58
Date: 28 November 1947
Case No.: -
Importance: McCulloch v. May rejected the idea that commercial personality rights should be protected in cases where no common field of business activity between the parties exists
Facts: McCulloch was a presenter of a radio show for children. His character in the show was “Uncle Mac”. In that capacity built up a reputation. May produced puffed wheat breakfast cereals. The defendant not only used the name “Uncle Mac” to promote this product but also generated the fiction that McCulloch endorsed the product: The text on the defendant’s package said that Uncle Mac loved all children but due to certain impediments that made travelling difficult, was unable to visit them all. The claimant, McCulloch, was injured in the was and as a result had walking disabilities.
Decision and Reasoning: The Court construed personality rights purely as commercial rights under the action for passing-off. Personality is only protected if it is related to business activities. Therefore a reputation in that field is a mandatory element of the action. McCulloch had such a reputation. It was, however, restricted to radio shows.
Furthermore, passing-off requires an element of confusion of the public. Wynn-Parry J. interpreted this part of the action narrowly. To his mind, confusion could arise only if the claimant and the defendant shared a common field of activity.
The claimant’s good reputation, in this narrow concept, stretched only to the business area in which he was engaged. As “Uncle Mac” did not sell cereals, the public could not be misled by someone else selling cereals under his name.
As Laddie J. in Irvine v Talksport shows, this interpretation is not logical. The public can be confused even if there is no common field of activity between both parties: The public, for instance, can be misled about the question as to whether a public figure endorses a product or not. However, from 1947 until Irvine v Talksport 2002 the restrictive “Uncle Mac” doctrine was the law in England. Publicity rights were virtually non-existent.
Case Name: Lyngstad and Others / Anabas Products Ltd. and Another
Key Words: Character Merchandising; Memorabilia
Court: High Court, Chancery Division, Oliver J.
Citation:  FSR 62
Date: 2. November 1976
Case No.: -
Importance: The sale of memorabilia bearing the name of a popular music group does not, as a general rule, amount to passing-off. This is because a pop group does not, in general, trade in certain products such as T-shirts, cups etc. Even if they did, the (British) public would not necessarily think such products were produced under a licence from the pop group.
Facts: ABBA, the claimants are a well known pop group. The first defendant, Anabas Ltd. produced, inter alia, badges and T-shirts bearing the name ABBA and photographs of the group. The second defendant, Dormbourne Ltd., advertised the products in a magazine called “Disco 45”. The claimants asked the court for interlocutory relief on the basis of passing off. The claimants however, did not trade in the UK in products such as the ones manufactured by the defendants, at least not before the defendants had started their business. ABBA had granted a small number of licences to third parties for the production of specified memorabilia. None of these applied in the UK.
Decision and Reasoning: The claimants sought an interlocutory injunction pending the full trial to restrain the defendants from using the name “ABBA” and the photographs for their commercial activities. (65)
I. The essentials of passing off
The judge summarised the action of passing off: It is based on a misrepresentation, conscious or unconscious, calculated to lead to confusion between the goods or businesses of the plaintiff and those of the defendants. Its rationale is characterized as not allowing the defendants to prejudice the legitimate business interests of the claimant by exploiting the claimant’s goodwill.
II. Common field of activity / risk of confusion
Oliver J. referred to the Australian cases of *Henderson / Radio Corp. Pty. Ltd.  RPC 218 and Totalisator Agency Board / Turf News Pty. Ltd.  RPC 579 cases in which there was no requirement of a common field of activity. (66 et seq.)
Oliver J. disagreed with the approach. In his opinion the common field of activity as established in *McCulloch v May was nothing but a shorthand term for the risk of confusion. On this risk of confusion, Oliver J. pointed out that the plaintiffs did not engage in any business in the UK involving the sale of T-shirts before the defendants. The passing off action as a territorial concept could thus not succeed. Oliver J. also rejected the idea that the public could be misled in such a way as to believe that the claimants had licensed the products of the defendant. (67 et seq.). Finally, according to Oliver J., there is no proprietary right in the plaintiffs’ name as such. (68)
The passing of action was unsuccessful and therefore the injunction was not granted.
Case Name: Kaye / Robertson & another
Key Words: Libel, Malicious Falsehood, Trespass to the person, Passing off
Court: Court of Appeal (LJ Glidewell, LJ Bingham, LJ Leggatt)
Citation:  FSR 62
Date: 23.2.; 16.3.1990
Case No.: -
Importance: No right of and no tort of privacy in English law
Facts: Gordon Kaye was a well-known actor. He suffered severe head and brain injuries after a piece of wood had pierced the windshield of his car during a gale. He was treated in the Charing Cross hospital. Notices posted on walls restricted access to Mr. Kaye’s room to a close circle of relatives and friends. Too many visitors could have impeded his recovery. Ignoring these notices, two reporters of the tabloid newspaper, the Sunday Sport, who were acting on the orders of the editor, Robertson, entered Mr. Kaye’s private room. Whilst there they took pictures of greeting cards, the room and of Mr. Kaye himself. They asked him questions and recorded the answers for an interview. Medical evidence proved that Mr. Kaye was unable to give informed consent to this interview. The tabloid newspaper intended to publish the story anyway.
Decision and Reasoning: Kaye’s friend asked for interlocutory relief, which was granted by Potter J.. The Appeal on behalf of the defendants was successful: Only a limited injunction remained in force. It prohibited the defendants stating that Kaye had consented, but it did not prevent them from publishing the story as such.
1. No genuine tort of privacy in English law
Glidewell LJ first summed up the non-existence of protection of private affairs on England:
“It is well-known that in English law there is no right to privacy, and accordingly there is no right of action for breach of a persons privacy. The facts of [Kaye v Robertson] are a graphic illusion of the desirability of Parliament considering whether and in what circumstances statutory provision can be made to protect the privacy of individuals.” (66)
The tort of libel is applicable if a person’s esteem is questioned as a result of a defamatory, untrue public statement made by another. Relying on the authority of Tolley v J.S. Fry & Sons Ltd  AC 333 the Court of Appeals did not rule out that libel might be a basis for Kaye’s claim. However, the question as to whether libel applies is for a jury to decide. The procedural law allows the judge only to issue an injunction based on grounds of libel if he is convinced a jury would inevitably issue a libel verdict. The Court of Appeal was not sure that a jury would so decide and dismissed this claim.
As it is not the element of defamation at the centre of this case but rather the intrusion in the personal sphere of another the tort of libel has limited relevance.
3. Malicious falsehood
The essentials of the tort of malicious falsehood are that the defendant has maliciously published false statements about the claimant that lead to special damage. Pecuniary damage suffices in that respect. Malice will be inferred if the words were intended to produce the damage and the defendant was at least reckless in his concern as to whether the words were true or false.
Glidewell LJ was convinced that Kaye had not consented to the activities of the reporters as he was not in a state that would have meant that he could do so. The reporters knew this. A publication implying that Kaye had accepted such interview thus constituted malicious falsehood. Glidewell LJ also accepted that Kaye had a valuable right to sell his story and that this sufficed to meet the damage criterion even though the damage would be difficult to calculate.
4. Trespass to the person
The Court did not establish that a battery or trespass to the person had occurred. They also rejected the argument that such an offence could, in law, lead to an injunction prohibiting the offender profiting from his unlawful action.
5. Passing off
In a short passage the Court held that an action of passing off was not relevant. They found that Kaye was not a trader.
6. Breach of confidence not mentioned
The claimants did not advance an argument based on breach of confidence so the Court did not deal with it. The action of breach of confidence as it was identified in Naomi Campbell might have led to a different result in the instant case.
The Court based its limited injunction on the tort of malicious falsehood while dismissing the rest of the arguments put before it.
Case Name: Elvis Presley Trade Mark
Key Words: Character Merchandising; Memorabilia
Court: Court of Appeal (LJ Simon Brown; LJ Korrit; LJ Robert Walker
Citation:  RPC 567
Date: March 12, 1999
Case No.: -
Importance: The name of a well-known persons cannot act as a trade mark for memorabilia as a name is descriptive.
Facts: In 1989, Elvis Presley Enterprises Inc (EPEI) of Memphis, Tennessee applied for the registration of three trade marks in the UK under the 1938 Trade Marks Act. The applications were in connection with toiletry items in Class 3: The marks were “Elvis”, “Elvis Presley” and a signature of Elvis that was argued to be genuine. EPEI is the successor to Elvis Presley’s commercial operations.
Mr. Sid Shaw is the proprietor of the trademark “Elvisly Yours”, registered for a variety of products in class 3. He opposed the registration of EPEI’s marks. At first instance Laddie J. held that EPEI’s trade marks were not registerable. EPEI appealed.
Decision and Reasoning: Although the case is about trade marks, the decision reveals insights into the status of personality rights in England as both Laddie J. and the full Court of Appeal considered that trade marks bearing the name of a famous person cannot be registered for memorabilia.
I. Robert Walker LJ.
Robert Walker LJ. considered that the main requirement for the registration of a trade mark is that of distinctiveness. (574)
1. Descriptiveness and the importance of the product concerned
Descriptive trade names are not distinctive as all traders might wish to call a potato, a potato. It does however depend on the products concerned. The word “Potato” would not be descriptive for other products, such as a record or a dishwasher.
EPEI in that respect submitted that they dealt with two sorts of items: memorabilia and commercial consumer items. They characterized the first category as T-shirts, mugs, and similar goods i.e. the same fan merchandise as was under consideration in *ABBA Lyngstad//Anabas. EPEI identified the second category as commercial consumer items: products that bear the name Elvis Presley but serve a function, such as soap or perfume. Laddie J. had rejected this distinction: He considered that the product sold to him consisted of Elvis Presley with little more (577).
On that point Robert Walker LJ. referred to the Tarzan Trade Mark case  RPC 450, where the application for registration of that mark for films was rejected for movies as it was considered descriptive. (p. 578, 579)
2. Being commonplace
A further obstacle to distinctiveness arises in cases where a mark is too commonplace, for instance popular surnames. Ladies’ first names can and are registered for soaps and similar goods. (579)
3. Character merchandising
In a lengthy passage, Robert Walker LJ. cited the case-law concerning character merchandising. He considered that a trade mark case is not an appropriate one in which to develop the law of passing off. (582-3) He had addressed that point as EPEI had argued that there was a general rule that a trader may not make unauthorised use of the name of a celebrity in order to sell his own goods. The Court of Appeal did not adopt this view.
4. The judgment
On the basis of these observations Robert Walker LJ. concluded that the trade mark “Elvis” was descriptive as all the products sold under the sign could be considered as memorabilia concerning Elvis Presley. The trade mark “Elvis Presley” was rejected for the same reasons. (586). The third application, the signature, however, was not classified as descriptive in that sense. But here, the similarity to Mr. Shaw’s trademark “Elvisly Yours” precluded registration. (586).
II. Morritt LJ
Morritt LJ concurred with the judgment of Robert Walker LJ, but gave a differing opinion on the signature mark. He did not think the signature was authentic. Had that not been the case then Shaw’s trade mark would not have prevented EPEI’s application. (592)
III. Simon Brown LJ.
Simon Brown LJ. concurred with Robert Walker LJ. But he added an interesting point. Counsel for EPEI had identified a paradox in English law as it stands: the more famous a person, the less likely a trade mark can be registered with his or her name. (596)
The judge here differentiates between endorsement and merchandising, saying that the marketing of Geoffrey Boycott’s cricket bats and the marketing of Elvis toiletries are different cases, for Elvis was not known for toiletries. It seems *Irvine in that respect follows Simon Brown LJ. (597)
A second point is of interest is that Simon Brown LJ explicitly rejected the view that only the VIP concerned should market himself. “Monopolies should not be so readily created.” (598)
English law appears hostile to character merchandising. Without a trade mark, there is no exclusive right to market memorabilia. As *Elvis shows, famous persons run into difficulties trying to register their names as trade marks (although the name David Beckham has been registered as a Community mark in connection with inter alia children’s clothes)
Case Name: R / Dep. Of Health ex parte Source Informatics Ltd
Key Words: Data Protection, Health Data, Anonymisation
Court: Court of Appeal (LJ Simon Brown; LJ Aldous; LJ Schiemann
Citation: 2001 FSR 8
Case No.: -
Importance: The anonymisation of Health Data and the sale of such anonymous data is not a breach of confidence.
Facts: Source Informatics uses data obtained from prescriptions provided for NHS patients to generate information about patterns of use for certain medications. Their clients, the pharma industry, use this data to optimise marketing. Both the doctor and the pharmacist have to agree to enter their data as this information is not anonymised. The patients’ names and addresses are, however, erased before the data are collected. They, in general, did not know about this form of data collection. The Department of Health considered the collection of data unlawful. Source Informatics disagreed.
Decision and Reasoning: The question under the action breach of confidence was whether pharmacists owe their clients a duty of confidentiality. The court considered that they did, but that if they anonymised the data first, no relevant identifying information about the patient was revealed. On the evidence, the court was convinced that such anonymisation was done without the risk of re-aggregation. In other words restoring personal data that could identify certain patients. Thus no breach of confidence had taken place as the patients had no interest in their anonymised data except the interest to stay anonymous. The court indicated that even a slight risk of re-aggregation of the data would have sufficed to meet the elements of an action for breach of confidence. However, that was not the position in the instant case.
Case Name: Douglas v Hello! – Injunction
Key Words: Privacy; Rights in Own Marriage; Right to control forms of publication
Court: Court of Appeal (Brooke, Sedley, Keene LJJ)
Citation:  EMLR 9 ;  2 All ER 289, 9
Date: Nov. 22-23; Dec. 21, 2000
Case No.: -
Importance: The case explores the status quo of UK privacy law concerning injunctions after the coming into force of the Human Rights Act 1998. The Court interprets the law of confidentiality in a way to respect the ECHR. The conflict within Art. 10 (2) ECHR between the right to privacy (Art. 8) and freedom of the press (Art. 10 (1)) is solved by reference to the 1977 Press Code of Practice: Privacy prevails where is can be reasonably expected. The case further shows how the standards apply to the grant of an injunction.
Facts: Michael Douglas and Catherine Zeta-Jones sold the exclusive right to cover their wedding to OK! Magazine. The contractual arrangements gave them the right to decide what pictures actually would be published. The couple set up a tight security system; neither cameras nor videos were permitted. Nevertheless, someone was able to take some pictures. Hello! magazine intended to publish them. They were prevented from so doing by a High Court injunction. The Court of Appeal subsequently lifted that ban. In the trial on the merits the couple succeeded partially and were awarded damages.
Decision and Reasoning: I. Brooke LJ’s opinion
Brooke LJs starting position was that according to *Kaye v Robertson there is no right of privacy as such in English law. However, he acknowledged that certain decisions of the European Court of Human Rights and the coming into force of the *Human Rights Act 1998 might have changed this statement of the law. (61)
1. Breach of Confidence
As in the *Naomi Campbell case, counsel for the claimants relied on the tort breach of confidentiality. This claim had not been raised in *Kaye v Robertson. Brooke LJ subsequently explored the English law of confidentiality in depth. (64-70) He concluded, that equity can intervene to prevent the publication of photographic images taken in breach of confidence. Yet this remedy was subject to certain requirements: there has to be an obligation of confidence; it arises only on private occasions; the prospective claimants have to make clear that no photographic pictures are to be taken. If such conditions do not exist, English law does not intervene.
To clarify what conditions meet these prerequisites, Brooke LJ firstly examined cases of other common law jurisdictions. (73-75) He concluded that English courts should be cautious with such authority, for it originates from different constitutional backgrounds. (76)
The statutory background of the English law of confidentiality however is the 1998 Human Rights Act and the ECHR. Brooke LJ therefore considered the tension between Art. 8 ECHR, the right to private and family life, and Art. 10 (1) ECHR, freedom of expression. As Art. 10(2) ECHR states explicitly, privacy arguments can outweigh the freedom of the press. (77-95). Brooke LJ also struggled with the horizontal effect of the Convention. His solution to the dilemma was a reference to the 1977 Press Code of Practice. To his mind, this statute indicated the proper balance between the two interests. So one the one hand, the press and public have a right to know. On the other hand individuals are secure on locations where they can expect privacy.
In application of this rule, Brooke LJ found that the couple could not expect privacy during a wedding with 250 guests. The location was not a private one with only the closest relatives and friends. Furthermore, images of the wedding were to be published, as stated in the contract with OK. (95) The confidentiality argument, hence, was not strong enough to outweigh Hello!’s right to publish in an injunction case.
2. The financial considerations
The Court did not rule out the possibility that in a trial the claimants might obtain damages. Brooke LJ went on to balance the financial interests at stake. He found that a prohibition of Hello! magazine would lead to potentially incalculable damages, while OK’s potential damage could be calculated.
In the context of an injunction, the arguments of the defendants weighed more strongly although no predictions were made for the later trial.
II. Sedley LJ’s opinion
Sedley LJ’s opinion is the potentially most far-reaching.
1. A right to privacy in English law?
He says, the “legal landscape has altered” (116) and asks whether there is a right to privacy in English law today.
He firstly examined the English law of equity (113-127) to find that the tort of breach of confidence has a meaning outside contractual relationships. (118) He interpreted this tort as having a potential application in privacy cases.
2. The impact of the Human Rights Act and the ECHR
In exploring the Human Rights Act 1998 and the ECHR (128-137), and in common with Brooke LJ he found that Art. 10 (2) ECHR provides the key for privacy cases. He considered the right to privacy and freedom of the press as equally important in the ECHR. His solution is a proportionality test. (127)
3. The proportionality test
Sedley LJ applied the test to the facts. (138-144) These considerations showed that he was prepared to protect privacy while acknowledging that the couple had sold the rights to one magazine, prohibiting another from publishing the photographs. Sedley LJ seemed to accept both a commercial and a personal right. (142) Sedley LJ stressed the unlawful atmosphere in which the photographs were obtained. On this basis he saw success at trial for the claimants. However, doubts remained and he did not vote in favour of an injunction.
Sedley LJ favoured the claimants’ case, but thought the trial as the proper stage to fight the battle. He thought an injunction would be too intrusive.
III. Keene LJ’s opinion
Keene LJ showed first, that in this case the focus was already on the injunction, not on the trial for damages as news is a perishable good. (145-153) He then considered the available torts:
1. Malicious falsehood
Keene LJ rejected the arguments based on malicious falsehood, for no false statement could be proven. (155-158)
2. Interference with contractual relations
Concerning the interference with contractual relations, Keene LJ faced the problem that the photographer might not have acted illegally. He would not base an injunction on this. (159-163)
3. Breach of confidence
In his treatment of this tort (164-171), Keene LJ also acknowledged the importance of the ECHR. He referred to ECtHR Dudgeon / UK  4 EHHR 149 to conclude that the more private a fact is, the better the justification needed to disclose it. (168) He considered the fact that the couple sold the rights to another magazine as meaning the wedding was not altogether a private affair. (170)
Without ruling out that even such a limited degree of privacy might lead to damage he did not think it strong enough to grant an injunction.
All three judges concurred that an injunction was not to be granted. However, they differed significantly in their views on the outcome of a potential trial.
Case Name: Theakston v MGN Limited
Key Words: Injunction against an article about and photos of a TV presenter in a brothel; privacy in sexual matters
Court: High Court, Queen’s Bench Division, Ouseley J.
Citation:  EMLR 22
Case No.: -
Importance: Not all sexual conduct is confidential; both the press and individuals enjoy freedom of expression; brothels are not private locations unless payment ids made for confidentiality
Facts: The claimant presents the show Top of the Pops on BBC and has a radio show on BBC Radio 1. He visited a brothel in which he engaged in sexual activity. Photographs were taken of him with three prostitutes. Later, he was sent text messages on his mobile phone asking him to pay for the services. The claimant considered this to be blackmail. The story and pictures were given to the newspaper, the Sunday People. An injunction was sought preventing publication of both these items. This was granted by Ouseley J. in respect of the pictures but not in relation to the story.
Decision and Reasoning: 1. Evidence
Ouseley J. did not base the injunction on the evidence as given by the claimant. Instead he himself considered the evidence before him. Whereas this consideration is no final judgment on the truth or falsity of the evidence, it forms a factor concerning the injunction. (22) The judge thus listened to both parties.
2. The application of the balancing test
Ouseley J. referred to the test applied in * Douglas v Hello (injunction). (18) He applied a balancing test between Art. 10 (1) ECHR and Art. 8 ECHR (17), as prescribed by Sec.12 Human Rights Act 1998. (14) The application of the test is influenced by the content of the Press Complaints Commission Code, especially Sec. 405 concerning Privacy. (15) He interpreted the test such a way to ask whether, at trial, the injunction was more likely to be granted than not. (21)
a) No tort of privacy
The judge did not consider it necessary to apply a specific tort of privacy. (27). Instead, he applied the established breach of confidence test coupled with statutory provisions influenced by the Human Rights Act 1998, the ECHR and the Press Complaints Code. (26, 28)
b) The persons entitled to rights under Art. 10 (1) ECHR
The judge did not restrict the rights granted by Art. 10 (1) ECHR to the press. He considered the prostitute was entitled to express her views on the claimant. (31) Freedom of expression is not only a group right or institutional guarantee, but also an individual right. This applies to all breach of confidence cases, since all confiders are entitled to this human right. Until the instant case this argument had never been made in ordinary cases of breach of confidence.
c) The power of the freedom of the press
Ouseley J. stressed the importance of the freedom of the press. (34) Therefore – and an important point for the construction of the balance – the onus rested with the claimant as he (the claimant) wanted to restrict the defendants freedom. It appears that Ouseley J. considered freedom of the press as more important than privacy. Decisions such as *Douglas / Hello (trial) seem to differ on this point. This could be a major factor in the development of UK law. While in the US freedom of the press is indeed considered more valuable than privacy, continental jurisdictions tend to see both rights as equally important. The instant case indicates that the UK might follow the US approach, while *A v B & C points rather to the continental approach.
d) Sexual activity as private per se?
Applying the balancing test, Ouseley J. was confronted with the question as to whether sexual activity is private per se. McKay J. in *A v B & C had held that almost all sexual activity was private. (41) Ouseley J. took another approach (55): To his mind all the circumstances of intimate relations should be taken into account. He talked of a scale where marital relations in a private home are at the top, and one-night stands at parties at the bottom. (57) Depending where on the scale the activity was placed, more or less important reasons are necessary to overcome privacy considerations. Applying this scheme, the claimant’s conduct in a brothel was not regarded to be at the top end of the scale (i.e. not strongly protected by privacy). The location was considered to be in public. (62)
e) Public interest
Ouseley J. found a “real element of public interest” (69). To his mind, the claimant, as a presenter with the BBC, had to endure higher standards of morality applied to him than others might. (69). It was not clear whether the judge drew this conclusion from the fact that the claimant was a public figure, or that he was employed with a public sector broadcaster, or that he might be some sort of role model for teenagers. The mix of all three elements sufficed to allow the publication of the story. The pictures, however, were treated differently, as they were taken against the will of the claimant and he was at a place were he might fear stories being told, but not pictures being taken. Furthermore, the judge saw no public interest in the photos. He did not refer to ECHR cases and *Naomi Campbell where it was held that accompanying material to support a story can be protected by Art. 10 (1) ECHR.
Injunction was granted in respect of the story but refused in relation to the photographs.
Case Name: Douglas, Zeta-Jones, Northern Shell PLC v Hello! Ltd; Hola, S.A., Eduardo Sanchez Junco, The Marquesa de Varela, Neneta Overseas Ltd, (Philip Ramey)
Key Words: Privacy; Rights in Own Marriage; Right to control forms of publication
Court: High Court of Justice – Chancery Division (Lindsay J)
Citation:  153 NJL 595
Date: February-April 2003
Case No.: -
Importance: The case explores the UK law of breach of confidence in light of the Human Rights Act 1998. The Court interpreted the law of confidentiality chiefly in commercial terms whilst at the same time respecting the obligations imposed by the ECHR. The conflict within Art. 10 (2) ECHR between the right to privacy (Art. 8) and freedom of the press (Art. 10 (1)) is solved by reference to the 1977 Press Code of Practice: Privacy prevails where is can be reasonably expected. The case further shows how these standards apply in trial.
Facts: Michael Douglas and Catherine Zeta-Jones sold the exclusive right to cover their wedding to OK! Magazine. (See * Douglas / Hello – Injunction) The contractual arrangements gave them the right to decide what pictures would be published. The wedding took place in a New York Hotel and there were more than 300 people invited. The couple gave one picture to the public for free use. To avoid other photographs being taken without their permission they had set up a security system; neither cameras nor video recorders were permitted in the hotel and security firms had been hired to help ensure that no unauthorised photographs were taken. Despite these precautions a photographer named Thorpe was able to take some pictures covertly. They were sold by one defendant, the paparazzo Phil Ramey, to another defendant, Hello!’s major shareholder and acting director, Mr. Sanchez Junco, for the price of 188.000 US-$. Ramey’s case was stayed and left for trial at a later date. Hello! magazine published the unauthorised photographs on the same day as OK! published the authorised ones.
In the trial on the merits, the couple and OK Magazine’s proprietor, Northern Shell, pursued several defendants: Firstly, Hello! Ltd. as the company producing Hello!, its Spanish mother Hola! SA, and their proprietor Eduardo Sanchez Junco. The claimants succeeded in respect of a breach of confidence claim against these three defendants and were awarded damages.
It had been alleged that two further defendants, the Marquesa de Varela and her company Neneta Overseas Ltd. with seat of business in the British Virgin Isles, were responsible for the transaction. They had acted as intermediaries in respect of the payments made by Sanchez Junco to the photographers. These two defendants were, despite doubts, acquitted.
Decision and Reasoning: In his judgement Mr. Justice Lindsay focused on the action of breach of confidence after the coming into force of the Human Rights Act 1998.
I. Breach of Confidence – the state of the art
Lindsay J. first described, in abstract, the current state of play with regard to the action of breach of confidence. He focused on the traditional commercial form of the action rather than on the protection of privacy.
1. The Coco test remains relevant
He considered the three-pronged Coco test remained relevant. The first element relates to the nature of the information. The second one places a duty for the defendant not to disclose this information. Thirdly, the defendants’ action has to be detrimental to the claimant. (182)
a) Nature of the information
As to the first prerequisite, Lindsay J. noted that information under Coco does not necessarily have to be private in a qualified sense. To his mind, every piece of information that has not yet reached the public sphere meets this requirement. (182-183, 188-192) In the realm of trade secrets, it is well established that the information can be shared with others as long as the circle is closed. (187)
b) Obligation to keep confidence
The second element consists of a duty not to disclose the information. A contractual relationship in a wider sense, e.g. a marriage fulfils this criterion. However, Lindsay J. construed it more broadly. Following *AG / Guardian (Spycatcher), the duty also arises if information bears the badge of confidentiality. Lindsay J. stressed the fact that third parties, and not only those to whom the information is imparted, are bound by an obligation. As the ‘press’ were unlikely to be given information in confidence to hold otherwise would result in the action of breach of confidence being rendered meaningless as the publication of sensitive information could not then be stopped. (184)
Third, some sort of detriment for the claimant is necessary. (185)
The three-step test associated with Coco encompasses the necessary requirements for an action of breach of confidence. However, even if the tests are satisfied damages are not automatically due. Equity steps in and defences may arise. (193)
2. Equity as the peg to fuse confidentiality and the duties under the Human Rights Act.
In probably most interesting part of the judgment Lindsay J. elaborates on the impact of the Human Rights Act 1998 on the law of confidence. (186) Joining the Court of Appeal in the *interlocutory stage of the case he felt obliged to balance freedom of expression against the right to private life. His method of joining these considerations is equity. In a weighted approach an action of breach of confidence has first to meet the Coco test. The Human Rights Act has to be considered at the equity stage. (193)
The test for the first stage is as follows. Section 6 (1) Human Rights Act refers to both Art. 8 and 10 ECHR. Art. 8 ECHR protects the private life of people, while Art. 10 (1) ECHR protects freedom of the press. Art. 10 (2) ECHR, however states that freedom of the press can be restricted in favour of private rights of others. Such a right is encompassed in Art. 8 ECHR. A balancing test thus ensues. (186 ii)
Within this test, certain guidelines have to be followed. One is the Council of Europe Resolution 1165 which recognizes that information about the lives of some people has become a commodity. (186 iii) Section 12 (1) and (4) Human Rights Act further oblige the judge to take the relevant press privacy code into account. (186 vi)
The Press complaints code orders those who publish information to justify intrusions into the private lives of individuals. It further prohibits long lens photography in private places. Such places include private property and public grounds if privacy can be reasonably expected. (186 vii)
This weighing test thus determines whether equity intervenes or not.
II. The application of the law to the case
Lindsay J. applied these principles to the instant case. The fact that a considerable amount of money had been paid by OK to ensure the right to take exclusive photographs convinced him to find that the wedding was a commercial activity attracting such aspects of the law of confidence as can be deployed to protect trade secrets. (195-196)
1. The Coco test
Concerning the perhaps most critical point of the judgement, Lindsay J. held that the wedding reception had the necessary quality of confidence about it. (197)
The main defence arguments had concerned that point: The defence had argued that the Douglas’ did not intend to keep their wedding private but had sold the ability to take pictures of the event to another magazine (213) whilst retaining control over the pictures that would finally be published (216).
Lindsay J. rejected these arguments holding that the right to take photographs is a valuable commodity and subject to the law of confidence. The mere intention to publish such information does not preclude a right to privacy. After the OK! Publication containing the photographs the situation could have changed. Finally, the couple were entitled to control the pictures taken and the articles written about them in OK! In so doing they could avoid a more critical press coverage - articles without pictures are not as attractive as others.
According to Lindsay J. well-known people have a right to their appearance in public.
The other points of the Coco test were fulfilled. (198-199)
Concerning equity, Lindsay J. held that the case was similar to one of long lens photography. Trespassing into private areas was offensive in both cases. Public interest as a defence was not claimed as a justification for publishing the photographs. (203-206)
The judge did not accept a multitude of other defences raised. (207-226)
There was a breach of confidence.
III. A right to privacy is not (yet) recognized
All other claims were rejected. In particular Lindsay J. did not think the case in hand was one to establish a free standing right to privacy. He observed that the action of breach of confidence with its equitable considerations has turned into something which comes close to it. He doubted whether there will be a case that would necessitate such a free standing right, but did not rule out that possibility. (229)
IV. Aggravated Damages
Aggravated damages were not awarded as the detriment to the Douglas’ was relatively moderate. (275)
The first three defendants were held liable to the claimants for breach of confidence. Fixing of the compensation due was left to further trial.
Case Name: B&C v. A
Key Words: Breach of Confidence: Reports about Extramarital Affairs
Court: Court of Appeal (Woolf L.C.J., Laws and Dyson, L.JJ.)
Citation:  H.R.L.R. 25, 703
Date: 11. March 2002
Case No.: -
Importance: This case gives guidelines as to how the breach of confidence action will be construed under the Human Rights Act 1998; it develops a scalable approach to privacy; it confirms that the right of expression of one party to an affair can outweigh the right of privacy of the other
Facts: Claimant A is a premiership footballer. He is married with children. He had affairs with D and the defendant C. C went to a newspaper (the defendant B) to tell the story. A obtained injunctions against B and C not to publish the story. B and C appealed.
Decision and Reasoning: The Court of Appeal gave “guidelines” for future privacy applications. (§11)
The action breach of confidence now is heavily influenced by the Human Rights Act 1998.
1.Standard necessary for an interlocutory injunction.
Sec. 12 (3) HRA defines the standard necessary to obtain an injunction against publication as the likelihood of establishing a prohibition in trial. The former American Cyanamid test had phrased it “real prospect of success”. The Court, however, thought the difference between the two was irrelevant.
2. Balancing the freedom of press and privacy.
The Court moved on to apply Sec. 12 (4) HRA. They started from the view that freedom of the press is important and any press reporting is in the public interest. Interference with such reports must hence be justified. (§11 v-vi)
The notions “privacy” and “public interest” are left undefined. The Court considered their existence “obvious”. This appears to result in a scalable approach to both privacy and public interest. Privacy is a matter of degree. The Court referred to the Australian *Lenah case: “The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person is in many circumstances a useful practical text of what is private.” This test is not very precise and it will be for the courts to determine what “a reasonable person” might think. Sec. 12 (4) HRA provides some guidance. It refers to the Press Complaints Code in which some examples of what is “private” are given. (§11 xv) For instance, the fact that a person is famous can lead to disclosure being more easily justified. (§11 xiii)
The burden is on the side of privacy to trump freedom of expression. (see §11 xiv)
3. The elements of the action of breach of confidence.
Once again, the Court made clear that there is no need for a freestanding privacy action. (§11 viii) The Court considered that the action of breach of confidence in its post HRA adapted version was sufficient to protect privacy.
A duty of privacy applies if someone can reasonably expect his or her privacy to be protected. (§11 x-xi) If, however, as in the instant case, one of the partners who created the private situation wants a third party to publish the story, such an exercise of freedom of expression influences the right to privacy.
4. The application of the law to the facts.
The Court of Appeal followed the approach of Ouseley J. in *Theakston, §59 and did not regard all sexual relations as protected by the law of breach of confidence. While marriage and long-lasting relationships gain the most protection, transitory sexual encounters are the least protected. In the instant case the Court did not consider the affairs as being of the type worth protecting, especially as one party had gone to the press. (§§45, 47)
Case Name: Edmund Irvine / Talksport
Key Words: Protection of commercial personality rights by means of the passing of action in a case of false endorsement
Court: High Court Chancery Division (Laddie J.)
Country: United Kingdom
Citation:  E.M.L.R. 32 ;  2 All E.R. 414;  F.S.R. 60; (2002) 25 (6) I.P.D. 25, 039 et al.
Date: Jan. 22-23, 28-29; March 13, 2002
Case No.: -
Importance: In a case of false endorsement, a passing off action serves to protect goodwill. The parties need not to be in competition. The law will not allow others to use goodwill so as to reduce, blur or diminish its exclusivity. As essential requirements of a successful passing off action, only “goodwill” and “misrepresentative endorsement” remain.
Facts: The defendant, Talksport, is a radio station focusing on sports broadcasting. They acquired the rights for the 1999 Formula 1 racing season. In 1999, they accepted a promotional campaign designed on their behalf by another party, SMP, which aimed at an audience for the Silverstone Grand Prix to be held in July. SMP produced about 1000 boxed packs of promotional material and sent them to people who were likely to influence decisions concerning the placement of radio advertisements. The boxes bore photographs of a formula 1 car and Michael Schumacher. They each contained a pair of white shorts bearing a Talksport promotion and four page brochure. The inside and back of this brochure displayed information on Talksport along with photographs of an F1 car and a winners podium. The subject of dispute was the photograph on the front side of the brochure. It showed Edmund “Eddie” Irvine, the claimant. The right to use this photograph was purchased by SMP from a sports photo agency. In the original photograph, Mr. Irvine held a mobile telephone at his ear. SMP altered the photograph in such a way to show Mr Irvine holding a radio bearing the name of the defendant.
Mr. Irvine, joined in his claim by companies to whom he had assigned his ‘personality rights’ for tax reasons, asked the Court to grant compensation. (8)
Decision and Reasoning: Laddie J., first distinguished between merchandising and endorsement. He described the former as the sale of memorabilia bearing the name of a famous person or an event and the latter as somebody recommending a certain product or service to the public. “He adds his name as an encouragement to members of the relevant public” to buy or use it. (9) This case is thus classified as one of endorsement in that sense.
Laddie J. identified the requirements for such endorsement to be protected by the action of passing-off.
In the introduction and obiter dicta, Laddie J. cited Lord Morris J. in Parker-Knoll v. Knoll International  R.P.C. 265 at 278. He said “that trading must not only be honest but must not even unintentionally be unfair.” (13) This language resembles the broad continental approach of unfair competition. Laddie J. was prepared to accept a broad interpretation of the action of passing-off stressing the dynamic nature of this judge-made law. (14)
Laddie J. also indicated that he might be prepared to proceed by way of an argument under Article 8 ECHR.
1. No common field of business activity necessary for passing-off
In the last case of endorsement, prior to the instant case, McCulloch v. May (1947) 5 R. P. C. 58, 66, Wynn-Parry J., had felt that the passing off action in an endorsement case necessitated a common field of activity. The claimant, famous under the name “Uncle Mac” as a radio presenter in a children’s program had not succeeded against a company selling “Uncle Mac” cereals because there was no common field of activity. This was despite the fact that they had used his popularity to advertise this product.
Wynn-Parry J relied on Maugham J. in British Medical Association v. Marsh (1931) 48 R.P.C. 565. There, the defendant, a pharmacist, had used the letters BMA to market his products. The claimant, the association for medical professionals, was a not for profit company. As such, they did not compete against the pharmacist. The claimant won this case. Laddie J. was thus in a position to reject McCulloch v. May as a precedent. (23-29) For the passing-off action a common field of activity is no longer necessary.
2. Goodwill as objective protected by passing off
Laddie J. identified goodwill as protected by an action for passing-off. (32) He concluded that the law of passing-off had expanded over the years and that the commercial environment in which it operated had undergone frequent changes. (39) If someone acquired a valuable reputation or goodwill, the law of passing off would protect it from unlicensed use by other parties. (38)
3. No diminishing of sales necessary to show damage
From the starting point that goodwill is a valuable good in itself, it seems logical that it should not only be infringements into somebody else’s goodwill that directly or substantially diminish the sale of his products or services that would be considered an actionable damage. The law should, in addition, vindicate the claimant’s exclusive right to reputation or goodwill. (38) Transferring these arguments to endorsement, Laddie J.concluded that “the endorsee is taking the benefit of the attractive force which is the reputation or goodwill of the famous person”. (39) The similarity to the German Bundesgerichtshof’s considerations concerning unjust enrichment in Fuchsberger are apparent. Passing-off in English law, at least in Laddie J’s interpretation, serves the function of “vindication”, i.e. it re-establishes the lawful allocation of property rights. The concept of unjust enrichment serves exactly the same goal. It follows in both concepts, that the mere infringement into such legal positions constitutes a damage.
4. The passing-off test in endorsement cases
Following Irvine an endorsement case will be successful, if two interrelated facts are shown (46):
- First the claimant must be shown to have a certain reputation or goodwill.
- Second the claimant must prove that the defendant infringed this position. One example of this is misrepresentation. Laddie J. considered this would be established where the defendant sends out a false message, “which would be understood by a not insignificant section of his market that his goods have been endorsed, recommended or are approved by the claimant.”
5. The application of the law to the Irvine case
Applying this test to the Irvine case Laddie J. established a relatively high standard for the necessary goodwill. He examined the status of the claimant at length before accepting it to be sufficient. (47-57)
For the second part of the test, the misrepresentation whereby a not insignificant section of the market would consider that the goods had been endorsed, recommended or approved by the claimant, Laddie J. relied on the evidence before him.
He came to the conclusion that the photograph in question had indeed led a sufficient number of recipients to believe Mr. Irvine had agreed to endorse this product. (58-73)
On the basis of these considerations, Mr. Irvine’s application was successful.
Case Name: Naomi Campbell / Mirror Group Newspapers
Key Words: Protection against Press Intrusion into Private Life
Court: Court of Appeal (Lord Phillips of Worth Matravers, M.R., Chadwick and Keene L.JJ
Country: United Kingdom
Citation:  EMLR 2, p. 39
Date: July 8-10, October 14, 2002
Case No.: -
Importance: Non-existent privacy rights in the UK
Facts: Fashion Supermodel Naomi Campbell had stated publicly that she did not use illegal drugs. This was untrue. For more than two years she had been visiting a group, Narcotics Anonymous. Eventually she had been treated in a US hospital. The Mirror newspaper had revealed her drug addiction, but given inaccurate information about the period of treatment and other details. They also had published a photograph of her leaving a meeting of Narcotics Anonymous. A first article accompanying the photographs had been sympathetic. Naomi Campbell sent a request marked “private and confidential” seeking to stop further publication. In response the newspaper published further article, but this time portraying her in a negative light.
Decision and Reasoning: I. The judgment in first instance
At first instance Morland J. awarded a small damages to the claimant. The damages were based on the action of breach of confidence and on breach of the Data Protection Act 1998.
The Court of Appeal reversed the decision.
1. Breach of Confidentiality: Three Step Test
According to Morland J., a successful action for breach of confidence required three elements: (19)
- the details published must have the necessary quality of confidence;
- the publication must occur in breach of an obligation to the contrary in favour of the victim;
- the publication must be to the detriment of the victim
a) Confidentiality of Information
Relying on the decision of the High Court of Australia, Australian Broadcasting Corp. / Lenah Game Meats Pty Ltd  H.C.A. 63 Morland J. defined this element as “the requirement that disclosure or observation of information of conduct would be highly offensive to a reasonable person of ordinary sensibilities”. As to when the test might be met, Morland J. said: “usually the answer to the question whether there exists a private interest worthy of protection will be obvious” (A v. B plc  EWCA Civ 337,  3 WLR 542, § 11(vii)).
Morland J. considered that the information concerning details of Miss Campbell’s therapy met this requirement. (20)
b) obligation of non-disclosure
The question as to whether the Mirror had an obligation of non-disclosure was answered in the affirmative by Morland J. He classified the information as per se confidential as it bore a “badge of confidentiality”. This was so because the information given to the Mirror must have stemmed from a source that had an obligation of confidentiality in favour of Ms. Campbell. (22). Dishonesty was not considered an essential requirement by Morland J. (23)
c) publication to her detriment
This final requirement was met according to Morland J., as the information that was disclosed was likely to have adverse effects on Miss Campbell’s efforts to treat her addiction. (24)
d) The influence of the ECHR
Testing this result on the standards of the ECHR, Morland J. showed the need for a balance between Art. 8 (private life) and Art. 10 (freedom of expression). He held that the details of treatment should not be subject to being disclosed. The Mirror, however, met the public interest test for the disclosure of information in relation to the existence of Miss Campbell’s addiction because she was a public figure and role model for young people but she had lied. The Mirror was thus permitted to “put the record straight”. (28)
2. Data Protection Act
According to Morland J., publication is encompassed within the Data Protection Act. The processing of the data had not been fair because the photographs had not been fairly obtained. They had been taken in a covert manner giving no opportunity to Naomi Campbell to refuse to be photographed. The processing was also unlawful as a breach of confidence. Further conditions of legal processing within the Data Protection Act had not been met. (88) Morland J. considered that the s 32 exemption for publication concerned only the pre-publication phase (90).
3. First Instance Result
At first instance Morland J. thus found a double legal basis for the claim: There was a breach of confidence and contravention of the Data Protection Act. This finding was not based on the fact that the claimant’s drug addiction had been revealed but was rather due to the additional information.
Court of Appeal
II. No separate tort of privacy
By contrast with most jurisdictions, English law does not know a separate tort of privacy. The Court of Appeal did not develop one in Campbell / Mirror. However, the Court acknowledged a development in the law of defamation and a broad interpretation of the tort of breach of confidence. (61)
III. Breach of confidence
In the breach of confidence action the Court of Appeal accepted the three-step test by Morland J. However, they came to different conclusions under the same headings.
1. Confidentiality of information
The Court of Appeal accepted Morland J.’s approach as to what information is confidential. However, given that reliance on common sense is not helpful in terms of predictability, the Court gave some hints as to certain categories of information that might be considered confidential: One of them is details of medical conditions or treatment. (48) Accepting the reference to Australian BC v Lenah Game, § 2, they also seemed to accept information about personal relationships and finances as being within such categories. (48) The Court divided the test into two. Did the information relate to private matters? Was the information sufficiently significant? The Court considered that in the instant case the first part of the test was not met due to the fact that Miss Campbell is a drug addict. (48, 53) As a result of the other facts in the case they considered that the second part of the test was not met (54). The Court accepted that there were “inaccuracies”, i. e. purely made up information about the claimant, but appeared to consider that such false statements did not harm the claimant because they were false. (57) In Caroline of Monaco, the German Courts took the opposite view. There the court said that made-up information about very private details led to aggravated damage compensation.
Thus the action for breach of confidence did not succeed on appeal.
2. Entitlement in the public interest to publish
The Court of Appeal accepted that the Mirror was justified in publishing the photographs and further details. They referred to the ECtHR decision Fressoz & Roire / France  EHHR 1 for the interpretation of Art. 10 ECHR on freedom of expression. In § 54, the EctHR allowed journalists to publish reference material so long as they acted in good faith and provided “reliable and precise” journalism. The Court of Appeal placed the photographs and details of the Mirror article in that category so providing a justification (64). This was despite the fact that the Mirror had made up many of the accompanying facts and had spied on the claimant to obtain the photographs. The public interest of journalism was thus interpreted broadly.
In a further point the Court said that dishonesty was not a mandatory element of the tort of breach of confidence. (66-71)
4. Result: No damage under breach of confidence
As a result, the Court held that Miss Campbell was not entitled to damage compensation under the tort of breach of confidence.
IV. The Data Protection Act
1. Application to the publication of hard copies
In common with Morland J., the Court of Appeal accepted the publication of hard copy newspapers fell under the Data Protection Act. (97-107)
2. Protection for publication under s. 32 of the Act
Unlike Morland J. the Court of Appeal considered the exemption within s. 32 Data Protection Act covered publication. Journalism thus benefits in toto from this section. It is not only the pre-publication phase that is protected (108-132).
3. The application of s. 32 to the facts
The Court applied s. 32 Data Protection Act to the facts. In so doing they found that publication was in public interest and hence justified.
The Court of Appeal did not award damages to Miss Campbell.
Case Name: Wainwright and another v Home Office
Key Words: Right of privacy, strip searching, trespass, psychiatric injury
Court: House of Lords ( Lord Bingham, Lord Hoffmann, Lord Hope, Lord Hutton, Lord Scott)
Citation:  UKHL 53
Case No.: -
Importance: No general tort of invasion of privacy in English law
Facts: Rule 86(1) of the Prison rules 1964 confers a power in general terms to search any person entering a prison. Leeds Prison has internal rules and code of practice designed to reduce the embarrassment of strip searching for people who visit prisoners dealing with drugs: private room, consent must be given prior to the search, officers of the same sex as the visitor who is never completely naked, the body must not be touched, etc. The searches of the plaintiffs, a prisoner's half-brother and mother, were not conducted in accordance with those rules. Mrs Wainwright had been asked to undress virtually completely in a non-private room with an uncurtained window, she suffered emotional distress but no recognised psychiatric illness as a result. The half-brother, A, virtualy completely naked, had been touched by one prison officer and suffered recognised post-traumatic stress disorder some time afterwards. Both were not given the consent form until the search had been completed.
Both the trial judge and the Court of Appeal concluded that the searches were not protected by statutory authority. The trial judge said so under two reasons: firstly, because the strip searches were an invasion of the Wainwrights' privacy "which exceeded what was necessary and proportionate to deal with the drug smuggling problem" and secondly because the prison authorities did not adhere to their own rules. However, the Court of Appeal rejected the first one and only agreed to the second.
Nonetheless, an act without statutory authority as such is not enough to give a claim to compensation. The plaintiffs needed then to find a cause of action.
Decision and Reasoning: 1. Trespass to the person
Trespass includes, inter alia battery, i.e. an unlawful touching or any intentional physical contact which was not "generally acceptable in the ordinary conduct of daily life". The touching of A was unacceptable and the battery held on first instance stayed unchallenged. However, no such contact happened for Mrs Wainwright. The Court of Appeal then refused to follow the trial judge, either to extend the idea of trespass to the person to words calculated to cause physical harm or to think that the law of tort should give a remedy for any distress caused by an infringement of the right of privacy protected by article 8 of the ECHR.
Even if the appeal to the House of Lords did not put the case in that field, Scott LJ nonetheless stated that this battery was inextricably associated with the overall humiliation and distress caused by the search, a reason to award aggravated damages. But without this touching, the unjustified humiliation does not suffice at common law to constitute a tort (§60). In his opinion, "whether the infliction of humiliation and distress by conduct calculated to humilate and cause distress is without more tortious at common law" was the crucial issue of principle of this case, not whether the English law should recognise a tort of invasion of privacy. (§61)
2. A tort of invasion of privacy
The appellants argued that the House of Lords should recognise a tort of invasion of privacy to enable the UK to conform to its international obligations under the ECHR. Giving the main judgement, Hoffmann LJ rejected this invitation.
a) There is no need for a general tort of privacy
Hoffmann LJ recalls that many remedies already exist in English law; be it by common law torts like trespass, nuisance, defamation and malicious falsehood, by equitable remedies like breach of confidence, or by statutory remedies like the Protection under Harassment Act 1997 and the Data Protection 1998 (§18). Even when these are not sufficient and when some gaps may appear, the problem can be solved with an appropriate adaptation and development of an already existing principle. There is then no need for a general principle of "invasion of privacy". Moreover, he thinks that the coming into force of the Human Rights Acts 1998 weakens the argument that a general tort is needed to fill the gaps as, for instance, sections 6 and 7 are "in themselves substantial gap fillers" (§34).
b) It is not to the courts to declare such a principle
Refering to previous cases, including *Kaye v Robertson  FSR 62, Hoffmann LJ came to the conclusion that even if there was such a need, it was for the judiciary to declare the existence of a high level right to privacy. It would require detailed approach which can be achieved only by legislation (§33). He also relied on the 1990 Calcutt Committee which recommended inter alia that certain forms of intrusion should be made offences (§26).
c) The dangers of a general principle
It must be borne in mind that too broad a principle is not advisable. An adequate definition and its apropriate extent would be controversial, and a "general wrong of infringement of privacy" would certainly lead to legal uncertainty of an unacceptable degree (§27).
d) Legal principle or underlying principle?
A clear distinction must be drawn between the underlying principle of a rule of law, used as a value or guide as to how the law should develop, and the principle of law itself. Hoffmann LJ gives the example of freedom of speech and states that even if English common law is familiar with such values, they could not be embodied in a legal principle which is capable of sufficient definition to enable one to deduce specific rules to be applied in concrete cases.
e) The ECHR itself does not require such a principle
The appellants argued that a high level principle of privacy was necessary to comply with article 8 of the ECHR. But Hofmann LJ's opinion is that what the European Court is really concerned with is whether an adequate remedy in the national law is available when there is an infringement of privacy contrary to article 8(1) and not justfiable under article 8(2).
3. The analysis of intention
a) The Wilkinson v Downton principle
The debated point is that the defendant must have acted in a way he knew to be unjustifiable and intended to cause harm or at least acted without caring as to whether he caused harm or not. The prison officers did not intend to cause distress or did not wish to humiliate the claimants and did not realize that they acted without adequate justification. The Wilkinson v Downton principle thus cannot provide a remedy, there was no more than "sloppiness" (§45).
b) Does article 8 of the ECHR require intention?
Article 8 guarantees a right of privacy but Hoffman LJ is not convinced that it will necessary mean that this right will be infringed and damages awarded irrespective of whether the defendant acted intentionally, accidentally or negligently. If article 8 justifies monetary remedy for intentional invasion of privacy by a public body even if the only damage is mere distress, a purely negligent act may not enable such damages just because it affects privacy rather than bodily safety (§51).
Key Words: Breach of confidence, publication of unauthorised photographs, damages and compensation, assessment of damages
Citation:  EWCA CIV 595,  All ER (D) 280(May)
Date: 18 May 2005
Case Number: -
Importance: Authorisation given by an individual for photos taken on a private occasion to be made public did, to that extent, reduce the potential for distress caused by the publication of other, unauthorised photographs taken on the same occasion. This factor was very relevant in considering the amount of damages.
Facts: Hello! Ltd file appeal against the award of damages by Lindsay J., in favour of Mr Michael Douglas and his wife Catherine Zeta Jones Douglases"), and Northern & Shell Plc ("OK!"), the publishers of OK! magazine. The appeal is directed against the award of £ 14,750 in favour of the Douglases (in respect of liability only) and against the award of £ 1,033,156 in favour of OK! (in respect of liability and quantum). The Douglases and OK! contingently cross-appeal; the issues raised on the cross-appeals concern the liability of Hello! Ltd to OK!, and the damages awarded to the Douglases. (For previous case proceedings, see * Douglas v Hello! (Injunction). and Douglas v Hello! (2003). At the hearing to determine the quantum of damages (7 November 2003), Lindsay J while refusing to grant damages on the basis of a notional license fee, had awarded the Douglases damages on a different basis namely (a) £ 3,750 each for the distress occasioned by the publication of the unauthorised photographs, (b) £ 7,000 between them for the cost and inconvenience of having to deal hurriedly with the selection of the authorised photographs to enable them to be published in OK! magazine no later than the publication of the unauthorised photographs in Hello! magazine and (c) nominal damages for breach of the Data Protection Act 1998. The judge awarded OK! £ 1,026,706(representing his assessment of their loss of profit from the exploitation of the authorised photographs) and a further sum of £ 6,450 in respect of wasted costs.
Decision and Reasoning:
Issues relating to Confidence and Privacy
It must not be supposed that a person who authorises publication of selected personal photographs taken on a private occasion will not reasonably feel distress at their unauthorised publication. (Para 106) However, to the extent that an individual authorises photographs taken on a private occasion to be made public, the potential for distress at the publication of other, unauthorised, photographs, taken on the same occasion, will be reduced. It will be relevant in considering the amount of any damages.
The agreement that authorised photographs can be published will not, however, provide a defence to a claim, brought under the law of confidence, for the publication of unauthorised photographs. Therefore, the Douglases were in no way precluded from contending that their wedding was a private affair and as such protected by the law of confidence. (Para 107)
No challenge was made to the previous award of £3750 for the distress caused by the use of the unauthorised photographs (para 110)
Equity protects the opportunity to profit from confidential information
There is no reason in principle why equity should not protect the opportunity to profit from confidential information in the nature of a trade secret. ( Cases referred: Saltman Engineering v Campbell Engineering, Prince Albert v Strange, Gilbert v The Star, Shelley Films Ltd v Rex Features) The Court derived that where the individual ('the owner') has at his disposal information he has created or which is private or personal and to which he can properly deny access to third parties, and he reasonably intends to profit commercially by using or publishing that information, then a third party who is or ought to be, aware of these matters and who has knowingly obtained the information without authority, will be in breach of duty if he uses or publishes the information to the detriment of the owner(para 118).
Effect of Exclusive licence to commercially exploit photographs
OK! though granted an exclusive license to use the approved photographs, did not by virtue of the same, get any right to claim through assignment or otherwise the benefit of any other confidential information vested in the Douglases( para 134)
The Douglases retained the residual right to privacy or confidentiality in those details of their wedding that were not publicly revealed. It was therefore up to the Douglases and not OK! to protect that area of privacy or confidentiality. In a volte-face on the earlier ruling, it was held that OK! was not in a position to invoke against Hello! any right to commercial confidence in relation to the details of the wedding or the photographic images portraying the same (para 137). Therefore, Hello’s appeal against judgment in favour of OK! based on commercial confidence was allowed.
Unlawful Interference with Business
OK!s cross appeal against Hello! was dismissed as OK! failed to establish that Hello! had the requisite intention needed to establish the tort of unlawful interference with business or conspiracy to injure by unlawful means. (Paras 213-246) The essence of the tort of unlawful means, conspiracy, and unlawful interference that the conduct that causes the harm is aimed or directed at the claimant. In such cases, the requisite intention i.e. the purpose or object of causing the clamant economic loss must be present.
Hello!'s appeal against the judgment in favour of the Douglases based on privacy and commercial confidence is dismissed. Hello!'s appeal against the judgment in favour of OK! based on commercial confidence is allowed. OK!'s cross-appeal based on the economic torts is dismissed. The Douglases' cross-appeal on damages is dismissed. (Para 260)
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