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Section numbers from the book are used when relevant. The book should be read. Its content provides fuller explanations and context.
26.1.1 Information already in the public domain
Case study: In 1982, the Court of Appeal lifted an injunction, granted under the law of confidence, which had stopped the Watford Observer publishing information about Sun Printers, a local company. In 1981, the company launched a ‘survival plan’, reducing its workforce from 1,800 employees to 1,300. It was chaired by the magnate Robert Maxwell, and had been making losses. Later in 1981, Maxwell appointed ‘an independent commission’ to prepare a report to make recommendations about the company’s future, and asked the workforce to give it information, saying he would make a copy of its report available to the ‘the trade union side’. When the report was finished, Maxwell arranged for six copies of it to be sent to general secretaries of trade unions, six to union branch secretaries, 10 to union officials among the workforce, 28 to directors and senior managers, with 60 copies going to middle and junior managers. The idea was that trade union officials would discuss the report’s findings with the company’s workforce – which meant the company expected information in the report to be shared with the workforce, so they could put their views to Maxwell. He had, on the basis of the report, already told managers and trade union officials that there needed to be a further 338 job losses at Sun Printers. Someone gave a copy of the report to the Watford Observer. After Maxwell heard that the newspaper planned to publish extracts, Sun Printers obtained a High Court injunction to stop it from doing so from a judge who ruled that the report had been passed on in a breach of confidence. The newspaper appealed and the Court of Appeal lifted the injunction, allowing the newspaper to publish the extracts. The Master of the Rolls, Lord Denning said in the decision that the commission’s report was so widely circulated by Sun Printers that it could not be regarded as confidential. ‘It was for circulation amongst such a large number of people that it had not a sufficient degree of confidence to entitle it to the protection of the law’. So, whoever handed a copy to the Watford Observer had not breached any confidence, and the newspaper did not take it knowing that there was a breach of confidence. Lord Denning also said that publishing the information would be in the public interest, because the matters in the report were of great interest to ‘all the many people in the Watford area’ who were concerned with printing. ‘They were fit to be discussed, not only with the immediate workers in the Sun Printing works, but also those outside connected with the printing industry or interested in it’. By saying this, he was presumably referring to the prospect raised by Maxwell of hundreds of jobs being lost at Sun Printers (Sun Printers v Westminster Press Ltd, [1982] IRLR 292).
26.5.1 Damages
The legal battle, which was the Douglas case lasted for seven years, and showed that breaching the law of confidence can be very costly.
Case study: In 2000, the actors Michael Douglas and Catherine Zeta-Jones and the publishers of OK! magazine sued rival Hello! magazine in the High Court for breach of confidence after it published unauthorised photographs of the couple taken at their wedding reception in a New York hotel. The couple had an exclusive £1 million deal with OK! under which their wedding pictures would be taken by their own photographer and only images which they approved would be published. But Hello! obtained unauthorised pictures from a paparazzi photographer who managed to get into the hotel and take the pictures covertly. Hello! rushed its next edition into print to publish his photos and so spoil the commercial impact of the OK! ‘exclusive’ pictures. Mr Justice Lindsay, ruling that Hello!’s publication of the unauthorised pictures infringed the couple’s privacy, ordered it to pay them £14,600 in damages, as well as damages of £1 million damages to OK! magazine. Hello! appealed against the £1 million award, but in 2007, it was upheld by the House of Lords (Michael Douglas, Catherine Zeta-Jones, Northern and Shell PLC v Hello! Ltd, Hola SA, Eduardo Sanchez Junco (4), Marquesa de Varela, Neneta Overseas Ltd and Philip Ramey [2007] UKHL 21).
In Douglas, it was ruled that Hello! magazine knew when it bought the unauthorised pictures that the ‘information’ they contained – images of the couple - was regarded as private and confidential, and was also capable of commercial exploitation, and therefore Hello!’s conscience was touched - it was bound by the duty of confidentiality. It was noteworthy as regards the development of privacy law, and – for some in the media, controversial - that the decision in Douglas was that the couple’s wedding was a private occasion, although there were 350 guests and the couple were exploiting it in the picture deal with OK! The ruling was that the security measures the couple took against intruders, and their insistence on approving which images were published, made it private.