But the real implications of the case are not about privacy (where the courts have not been prepared to create a new stand-alone tort) but in representing another step in the judicial march towards protecting celebrities (rather than the person in the street who might benefit from privacy) by the introduction of a distinct right to publicity in this increasing image- and brand-driven age.
Talk Radio was punished for using the image of a racing driver to promote its product and the taxman is allowing football clubs to make payments to soccer stars to take into account European-style image rights. These may, indirectly, impact on freedom of expression and make satire and doing impressions expensive. In time, Private Eye’s covers may come a cropper too.
The trial judge, Mr Justice Lindsay, took a dispassionate and judicial view of what he saw as a commercial row between magazines. The stars were the centre of the public interest, but they got only £3,750 each for their distress, plus a bit more to cover the cost of extra time spent with their photographers working on the pictures as a result of the Hello! scoop. For the judge, this was not about celebrity but commercial confidence.
Following on from this, the magazine was entitled to substantial damages because the unauthorised spoiler by Hello! had savaged the potential market, costing OK! more than £1m in lost sales. OK! was able to prove, through expert evidence, that it had lost income (not presumed but real, provable loss). Had it not been able to do this, the judge could have awarded it a notional licence fee, which would have been at least £125,000 (which is what Hello! was prepared to pay the paparazzi).
In this huge and complex litigation all the parties can claim and have claimed to be the real winner. But that is not the world of the reader. In the longer term, the real loser is more likely to be the public insofar as deprivation of celebrity life is actually a loss.
Any media relief that another celebrity claim for damages has not produced a goldmine for privacy lawyers to exploit is misplaced. These are real damages, not the relative pinpricks of about £25,000 paid for serious intrusions into privacy. The judicial thinking that went behind it should cause concern to media accountants. The £3,750 each for emotional hurt awarded to the film stars may not sound a lot, but the guesstimated costs of £3m plus £1,033,156 damages to OK! (and £1.75m had been claimed) is enough to make any newspaper or magazine think twice before attempting to spoil a rival’s story.
Journalists tend to see most of the newspapers or magazines but the public read only one or two so may miss out on the latest dress, diet or gossip and as a result buy less product, which even the courts have conceded is not good news for the free flow of information.
For as long as there have been tabloids, one newspaper’s expensive exclusive story is the subject of attack by its rivals through “cut and paste” spoilers thrown together from the archives or the purchase of other players in the story for a fraction of the cost.
The traditions of the spoiler came before the courts when the Sunday Times’s proposed serialisation of Margaret Thatcher’s memoirs was ruined by the publication by the Mirror of the most interesting extracts, just as the Tory party conference was beginning, in 1993. Former prime minister Lady Thatcher had granted an exclusive licence to the Sunday Times.
The Sunday Times was, understandably, furious and went to the courts, but the Mirror fought off an injunction to stop it publishing further material from the memoirs. The Sunday Times had planned to start serialising them at the end of the party conference. But the Mirror argued that its revelations were in the public interest and that the public were entitled to know more. The judges agreed.
The court of appeal doubted whether confidence could be said to attach to memoirs that are about to be published anyway; but there has been criticism of that decision, and the green light that it was felt it gave to spoilers may have just become a red one, as the Sunday Times had a commercial interest in exclusivity which might now find judicial favour and a different result a decade later.
There is, of course, a huge difference between information (or photographs) concerning a former prime minister – clearly a matter of legitimate public interest – and a private wedding reception in a top hotel in New York involving film stars who, no matter how glamorous, are not elected and do not run the country.
Spoilers have largely been justified on the basis that there is no copyright in the news and a defence of fair dealing which allows the reproduction of a few choice quotes as long as these do not amount to a substantial reproduction. But fair dealing is a defence to copyright. Commercial confidence – obviously – is a part of the separate tort of breach of confidentiality (and beyond that defence, which has just been restricted by statute anyway). That there is a public interest can be raised in commercial confidence cases to come (this is new law) but the courts are likely to be more restrictive. Unless a celebrity is committing a crime or involved in serious antisocial behaviour, what public interest can there be in a wedding, particularly as so many celebrities seem to have so many weddings? A newspaper may be able to describe a wedding dress in words but not reproduce it as a picture (or even as an accurate drawing). Judges see no public interest in tittle-tattle, even if it sells.
The trial judge dealt with a very specific set of facts but legal history shows us that cases can develop a life of their own with unexpected ramifications. In the 19th century, employers sued employees for damage to machinery when a clumsy employee managed to crush an arm in the mill, stopping production. Now passive smokers have their eyes on the rich tobacco companies.