The Zeta Jones privacy case ends in confusion - and yet another restriction on free speech.
On 11 April 2003, Michael Douglas, Catherine Zeta Jones and OK! magazine won or lost (depending which newspaper you read) their case against Hello! magazine.
They won the case on the grounds of commercial confidentiality after Hello! was said to have undermined a £1million deal with OK! by publishing unofficial photographs of the couple’s wedding. They were said to have lost part of the case because the judge agreed that there was no right to privacy.
The confused reaction to this case by the press reflects the ambiguous way the laws relating to privacy are being interpreted by judges. But one thing is clear: when it comes to decisions made by the courts, the ability of magazines to publish photographs of their choice is diminishing.
It is easy to laugh at celebrities such as Catherine Zeta Jones, who don’t like unofficial wedding photographs of themselves eating cake or press headlines such as ‘Catherine Eater Jones’. In general, celebrities have become the focus of ridicule by some journalists, as supermodels, Premiership footballers and TV stars try to bring privacy actions against the media.
But it’s hardly surprising that celebrities should try to get more PR control over their image. What’s more surprising is that they are able to do so. Interpretation of the tort of confidence provides increasing scope for the rich and powerful to control what is published about them.
Although some newspapers have heralded the failure of the Zeta Jones case to produce an official privacy law, this misses the point (1). Who needs an official law on privacy when, in media-privacy cases, judges are developing the tort of confidence to restrict free expression anyway?
In the Zeta Jones case, the tort of confidence was expanded to allow a celebrity couple and a magazine to protect their commercial agreement from a rival magazine (2). According to Chris Hutchings, Hello!’s lawyer, ‘This is the first time that an exclusive feature has been held to be a trade secret. It could set a dangerous precedent and, in an industry where spoilers are commonplace, be used against the very people who have made new law.’ (3)
A private contract between individuals (in this case OK! and two celebrities) is said to justify the restriction of other people’s expression (in this case Hello!’s right to publish photographs). But why should it? A commercial agreement is between the parties concerned and should have nothing to do with what anyone else wants to disseminate to the public and what others wish to read about.
Another disturbing aspect of this case is that the act of publishing photographs is confused with the act of intruding into a wedding party. The judge, Mr Justice Lindsay, agreed that Hello! did not instruct a photographer to commit an illegal act of intrusion; the magazine simply bought the photos (2).
However, it was clear that the judge tied Hello!’s act of publishing the photographs to an act of intrusion into the wedding by another party. He said, ‘Eduardo Sanchez Junco [the Spanish owner of Hello!] knew and ought to have known…that the taking of the unauthorised photographs, which he had been careful not to commission, would have involved at least a trespass or some deceit or misrepresentation on the photographer’s part’ (2).
If the actions used to gather material are used to undermine freedom of expression, this misses what freedom of expression is about. It should not concern what material is gathered or how it is gathered, but the ability to disseminate that material.
The rise of interest in celebrities’ private life may not be everyone’s idea of what is in the public interest. Certainly big money can be made by selling magazines featuring the latest celebrity photograph, and this no doubt creates pressure for photographers to try all kinds of measures to gain access to celebrity events. But the ability to publish photographs should not be conflated with other issues to do with culture, commerce or criminal acts.
Maybe Michael Douglas and Catherine Zeta Jones don’t want us looking at unflattering photos of their wedding day; maybe we don’t want to look at them. But a culture that allows the rich and powerful greater control over what we watch and read is not one that we should court.
Tessa Mayes is the author of the spiked-report Restraint or Revelation? Free speech and privacy in a confessional age.
spiked-issue: Free speech
(1) ‘Catherine privacy claim is kicked out’, Daily Mail, 12 April 2003
(2) High Court Judgement of the case of Michael Douglas, Catherine Zeta Jones, Northern and Shell plc v Hello! Ltd, Hola SA, Eduardo Sanchez Junco, The Marquesa de Varela, Neneta Overseas Ltd, Philip Ramey, 11 April 2003
(3) Chris Hutchings quoted in ‘OK! Perhaps it was Hello! that won the battle, but lost the war’, The Times (London), 15 April 2003
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