Douglas, as the case was argued in the House of Lords, was a case about the secrecy arm of the law of trade secrets, not the privacy branch, though it concerned information that would also have been protectable under the privacy branch.

The main impact of the case was on the nature of protectable information – in other respects it confirmed existing case law, for example on the fact that interlopers were under a duty of confidence (Shelley v Rex) and that further recipients of information were bound by a duty, depending on their knowledge (Spycatcher, Thomas v Pearce). The essay should illustrate, with reference to cases such as De Maudsley, Fraser and so on, how the law of confidence has developed an approach to judging information as to its quality and worthiness for protection, so trivial or unoriginal information will not be protected, even if confidential. Hazel Carty’s analysis of the law as developing a ‘merit-based’ approach, where the parties and the information are judged as to their private and public merit, should be mentioned here.

The difficulty in Douglas can then be explained: the House of Lords held that even after some photographs of the couple’s wedding had been published, further photographs of the same scene continued to contain protectable confidential information – the ‘one picture is worth a thousand words’ argument. The minority in Douglas objected because what was protected by this approach was purely the trivial aspects of the photography, but the majority view was that as the information had a clear commercial value, that was enough for it to be protected. This can be viewed as contrary to the merit-based approach, in that viewed on its own (irrespective of any commercial value it may have) the information protected might be thought unmeritorious.  On the other hand, the fact that the majority decision avoided the need to judge the merit of information has its advantages – it avoids the possible criticism that a bunch of aged middle class lawyers were imposing their own values and tastes on the situation (it is unlikely that any of their lordships were avid consumers of celebrity gossip).

It is also possible to discuss the issue in relation to economic theory: if customers like celebrity gossip, then it is appropriate to provide a right that encourages celebs to provide it. Perhaps this was a case of the right result for the wrong reason.  Thus a further criticism of the case is that the House of Lords refused to come to its decision on unfair trading-based grounds, although really that was the wrong in the case is Hello! magazine’s overly competitive conduct, not a breach of confidence.