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(House of Lords; Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood; 2 May 2007)
In the Douglas case the three criteria for liability for breach of confidence had been met: the information, private wedding photographs, had the necessary quality of confidence; the information had been imparted in circumstances importing an obligation of confidence, in that the Douglases had made it clear that no photographs were to be taken or communicated to anyone; and there had been an unauthorised use of the information to the detriment of the party communicating it, that is OK!, which had paid £1 million for the benefit of the obligation of confidence imposed on all those present at the wedding. There was no reason why there should not be an obligation of confidence for the purpose of enabling someone to be the only source of publication if that was something worth paying for. The information was capable of being protected not because it concerned the Douglases image or their private life, but because it was information of commercial value over which the Douglases had sufficient control to enable them to impose an obligation of confidence.
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