Douglas v Hello! Ltd (2005)

Aplin, Tanya; Skillen, Judith

Abstract

Douglas v Hello! Ltd (No 3) is, of course, only one of the several decisions spawned during the litigation between the Douglases, OK! magazine and Hello! magazine, nevertheless, we consider it a ‘landmark’ decision in the English landscape of privacy protection for two main reasons. The first is that it genuinely straddles the notions of privacy and confidentiality and in so doing demonstrates that these actions are awkward companions. The Court of Appeal indicated its disgruntlement that privacy protection was situated within the equitable action for breach of confidence, while at the same time it looked to delineate points of divergence, such as in relation to the publication of photographs. This arguably contributed to the later reformulation of an independent tort of misuse of private information. The court also accepted that privacy protection and commercialisation of confidential personal information are compatible and indeed allowed for twin-track claims of privacy intrusion and traditional breach of confidence, which in turn gave a third party (OK!) a basis on which to claim. While a parallel case to Douglas (No 3) has not occurred, it has recently been confirmed that motivations for keeping information private can legitimately extend to ‘controlling’ one’s public image. The second reason for the landmark status of the case is that it gestured at key challenges for the development of privacy protection in the sphere of remedies. The law of privacy in England and Wales was in a transitional stage at the time of Douglas (No 3). Personal privacy protection was still rather awkwardly being framed in the equitable doctrine of breach of confidence, and the tort of misuse of private information was in embryonic form. Therefore, as the law of privacy was undergoing some growing pains at the time of Douglas (No 3), it is unsurprising to see the court grappling with questions of potential remedies in the context of personal privacy. While Douglas (No 3) did not resolve these matters – such as, the possibility of negotiating damages – it marked out what would become the terrain for later debate....

Citation

Aplin, T., & Skillen, J. (2023). Douglas v Hello! Ltd (2005). In P. Wragg, & P. Coe (Eds.), Landmark Cases in Privacy Law (207-236). Hart Publishing. https://doi.org/10.5040/9781509940790.ch-010

• Online Publication Date: Feb 27, 2023
• Publication Date: 2023
• Deposit Date: Jan 31, 2024
• Publisher: Hart Publishing
• Pages: 207-236
• Book Title: Landmark Cases in Privacy Law
• ISBN: 9781509940769; 9781509940776; 9781509940783; 9781509940790
• DOI: https://doi.org/10.5040/9781509940790.ch-010
• Public URL: https://nottingham-repository.worktribe.com/output/30657658
• Publisher URL: https://www.bloomsburycollections.com/monograph-detail?docid=b-9781509940790&tocid=b-9781509940790-chapter10