Wednesday, May 02, 2007

OK v Hello!

OK v Hello! has finally been decided in the House of Lords (thanks to Loveandgarbage for the tip-off.) This is NOT, it should be stressed, about whether Michael Douglas and C. Zeta-Jones had their privacy invaded at their wedding (that one's been and gone in a shower of legal fees); it is about whether Hello! stole confidential information from OK, the information not being "about" OK, but about the aforesaid starlets and their so-called "private life".

According to the Beeb, "what the Law Lords were asked to decide was this: Did Hello magazine breach commercially confidential information in publishing unauthorised photos of the wedding of Michael Douglas and Catherine Zeta Jones?

And by a majority of three-to-two, yes, they did. So much , so duh. What we really wanted to know was: does this create a new property right, a right in your own image caught in photos, in videos, on tee shirts etc? And enforceable against the world, not just persons in a contractual relationship, or a relationship of confidence? Lord Hoffman says no: but it is clear the Max Cliffords of this world will waste no time in trying to turn it into one (especially given the tacit but acknowledge acceptance of such rights already in celebrity contracts and finacial planning affairs.)

I haven't had time to read it properly yet but am slightly heartened by one para that already caught my eye:

"118. It is first necessary to avoid being distracted by the concepts of privacy and personal information. In recent years, English law has adapted the action for breach of confidence to provide a remedy for the unauthorized disclosure of personal information: see Campbell v MGN Ltd [2004] 2 AC 457. This development has been mediated by the analogy of the right to privacy conferred by article 8 of the European Convention on Human Rights and has required a balancing of that right against the right to freedom of expression conferred by article 10. But this appeal is not concerned with the protection of privacy. Whatever may have been the position of the Douglases, who, as I mentioned, recovered damages for an invasion of their privacy, OK!'s claim is to protect commercially confidential information and nothing more. So your Lordships need not be concerned with Convention rights. OK! has no claim to privacy under article 8 nor can it make a claim which is parasitic upon the Douglases' right to privacy. The fact that the information happens to have been about the personal life of the Douglases is irrelevant. It could have been information about anything that a newspaper was willing to pay for. What matters is that the Douglases, by the way they arranged their wedding, were in a position to impose an obligation of confidence. They were in control of the information."

So we have not recognised , it appears, that X can sell their private life to Y, and Y can use privacy remedies to defend it. This is a good thing in my book. On the other hand, we have it seems in essence created a new form of intellectual property which can be defended against infringement by all comers, rather than merely against those who were in a contractual relationship. Celebrities and their lawyers and the crappy celebrity culture will all be very happy; and that can only be bad.

Intellectual prioperty rights are not awarded simply because it's a nice thing to so; they strike a balance between the need to incentivise creation and inovation, and the public interest in not allowing monopoly property rights over information.

Why should this balance be struck *at all* in relation to celebrity "image rights"? Do we want to incentivise the creation or more celebrities, or more celebrity activity? Would people not become celebrities even if the image right revenue stream was not available? As far as I'm concerned , the answers are no and yes. But what's done is done.

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