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Human Rights > Confidentiality > Flashcards

Confidentiality Flashcards

1
Q

What is the relevance of the case of : Wainwright v Home Office

A

This case questioned if there was a tort of privacy

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2
Q

What is meant by confidentiality ?

A

The law of confidential looks at restricted information and the prevention of unauthorised of infor

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3
Q

Distinguish the diffrence between confidentiality and privacy.

A
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4
Q

Is there a right to privacy in the English legal system?

A
  • According to Lord Justice Glidewell There is no right to privacy there is no right of action for breach of a person’s privacy’
  • Confirmed in the case of R V Roberts
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5
Q

What did the case of Hosking do?

A
  • This is a persuasive precedent( not binding but useful) case which established that

There are two crucial elements for a successful claim for interference with privacy:

  1. There must be a reasonable expectation of privacy
  2. Disclosures of private information would be considered highly offensive to an object
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6
Q

What articles does Breach of confidence link to ?

A

-Article 8( private family life)& 10( Freedom of expression)

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7
Q

What did the Calcutt Committee (1990) define breach of confidence as

A

the right of the individual to be protected against the intrusion into his personal life or affairs or those of his family, by direct physical means or by publication of information

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8
Q

Define breach of confidence

A

This is a civil remedy giving protection against the disclosure or use of information which is not generally known, and which has been entrusted in circumstances imposing an obligation not to disclose it without authorisation

  • Prince Albert v Strange ( injunction was awarded)
  • Argyll v Argyll ( Duchess was successful marriages are seen as confidential)
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9
Q

What are the three elements of breach of confidence ?

A

Coco v AN Clark (Engineers) Ltd - this case established that there needs to be the following elements in order for there to be a breach of confidence

There needs to be the following elements of breach of confidence:

  1. The information must have the necessary quality of confidence about it
  2. The information must have been given in the circumstances importing an obligation of confidence
  3. There must be unauthorised use of that information ie publishing that information or ..
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10
Q

What is information ? regarding breach of confidence

A
  • Stephens v Avery -court decided that the information had be disclosed in confidence and information about sexual activities could be protected under a duty of confidence
  • CASE: Shelley Films Ltd v Rex Features Ltd (1993)- D from publishing photos from the set as the photographer knew the occasion was private. -
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11
Q

What were the progressions made from the case of Stephens v Avery ?

A
  • basic principle appears to be that confidentiality will be Enforced if the information was received on the basis that it is confidential.
  • . This is illustrated in the case below:
    CASE: Fairnie (Deceased) and Others v Reed and Another (1994)- This illustrates that the implication of the circumstances makes something confidential. Given the information was of commercial value of the information was confidential
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12
Q

What is meant by public interest defence ?

A
  • Confidential information will not be protected if the public interest outweighs the interest in preserving confidentiality- this means that there is no defence of releasing confidential information in the name of public interest
  • CASE: AG v Guardian Newspapers Ltd (No 2) -The interest in maintaining confidentiality was outweighed by public interest, if public area already aware about the situation then there cannot be a claim of confidentiality. what is of interest to the public may not be in the public interest- this links to celebs
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13
Q

Why is the case of AG V GAURADIAN NEWSPAPER no2 significant ?

A
  • Because it established that the interests of maintaining confidentiality outweighs public interest unless the public are already aware of the information then there cannot be a claim of confidentiality .
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14
Q

Link breach of confidence and privacy after the HRA 1988

A
  • Art. 8 ECHR (right to privacy) is now incorporated into the HRA 1998.
  • Privacy must be weight alongside freedom of speech and expression under Art. 10 ECHR.
  • Venables and Thompson v News Group Newspapers - information was restricted because of there right of article 2 ( right to life)
  • : Associated Newspapers Ltd. v Prince of Wales – More about protecting his reputation and the wider impact which is why an injunction was granted
  • Murray v Express Newspapers -the court dismissed the claimants claim
  • Right to privacy is difficult when out in a public space
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15
Q

What are the cases tht link to breach of confidentiality and privacy after the HRA 1988

A
  • Venables and Thompson v News Group Newspapers -injunction was granted restraining publication of the claimants identities and their whereabouts.
  • There rights under the act 2 echr ( right to life)
  • Associated Newspapers Ltd. v Prince of Wales -injunction which prevented the mail on Sunday from publishing further extracts from the diary .More about protecting his reputation & Looks at wider impact
  • Murray v Express Newspapers -the court dismissed the claimants claim .=Right to privacy is difficult when out in a public space

-Author of a Blog v Times Newspapers-reasonable expectation of privacy however blogging is a public activity.
Public activity’s cannot have a right to private life

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16
Q

What were the boundaries set privacy and the European Court of Human Rights

A

This case led to the ECtHR (in its supervisory role) setting out relevant criteria when member states are considering how to balance Art. 8 and Art. 10.

  1. Whether the info contributes to debate of general interest
  2. How well known the person concerned is and the subject matter of the report
  3. The prior conduct of the individual concerned – do they have a past reputation ?
  4. Content , form and consequences of the publication – looks at wider impact and what it is that is being published. What are these consequences and what is the impact
  5. The circumstances in which the photos were taken -
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17
Q

Give brief history of Official Secrets and the Official Secrets Acts

A
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18
Q

What is the definition of an official secret

A
  • confidential information that has national significance if it was released. S1 ( crown employees and other government employees including government contractors and now covered under s12)
  • S2 criminalised the receiver – this was changed/ gone
  • : Aitken -disclosed that the UK government had misled the British- this resulted in s.2 being changed
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19
Q

What is the current legislation for the Official secrets act

A

-Official Secrets Act 1989: current legislation. The government claimed the Act would introduce a new era of openness,

20
Q

What is the significance of the case of R V Shaylar ?

A

Lord woolf held 2 spectrums where the defendant is under pressure to disclose information.

    • Duress could be raised as an offence under the official secrets act. But there is a criteria that must be met in order for duress to be used ie showing that the reason why you was under duress is because of a threat of someone specific ie family
  2. protecting the wider public ( non specific victim) is not enough for duress
21
Q

What did the new official secrets act do ?

A

Act narrows the scope of protection of official information by the criminal law to certain categories:
• Security and intelligence

  • Defence
  • International relations
  • Crime
22
Q

Explain security and intelligence as apart of the OSA 1989

A
  • Under section 1
  • Designed to cover members of security services but can be wider than that, this section limits disclosure of information regarding those services ie MI5
  • They have a lifelong duty where once a person becomes a member of the secret service is kept confidential and is protected for the duration of there life.

– Anything that is trivial is covered

  • S1(3) covers crown servants (former or present).
  • S1(4) (Harm test) a disclosure will be (or is likely to be ) harmful or damaging if it is realised
  • S(1)5 there is a level of defence if they can show that they didn’t know that the info was about the secret service. Reasonable belief that it wasn’t about the secret service .
23
Q

Explain Defence as a section of the OSA 1989

A
  • This is covered in section 2 ( covers all aspects of defence)
  • Section 2(4)a) size and shape of organisation , logistics , order of battle , development , operations and training of armed forces of the crown
  • Section 2(4)c) - Covers defence policy strategy and military planning intelligence
  • Section 2(4)d) covers plans and measures to maintain troops during war

To bring a action under section 2 the disclosure must be damaging in one of the following ways

    • Section 2(2)A - damages the ability of the armed forces to do there job or leads to loss of life/injury or damages equipment
  • B - endangers the interests of the UK abroad /endangers British citizens abroad
  • C- it is information that is likely to have the same affect as B or A
  • Similar defence to section1(5)
  • C
24
Q

What is section 3 of the OSA1989

A
  • Looks at international relations

-

25
Q

Explain section 3 of the OSA

A
  • This protects information that might damage interantional relations which includes info given to the gov by foreign countries or international organisations.
  • Harm test is the same as s(2)2)b and C
  • s3(4) defence similar to section 1(5)
26
Q

What section of the OSA looks at crime ?

A
  • Section 4 of the OSA 1989
27
Q

Explain section 4 of the OSA (1989

A

S4(2) covers information that is likely to result in the commission of an offence or the prevention or detection of offences
- Harm test similar to other sections

  • S4(3) covers information obtained using interception and security service warrants there is no harm in this category.
  • s4(4) and 5 defence same as other categories
28
Q

What is section 5 of the OSA 1989

A

This refers to information disclosed after being obtained in confidence

29
Q

Explain section 5 of the OSA 1989

A
  • If a person is told information in confidence by a crown servant and they disclose this then they will be guilty of an offence under this section
  • ## This includes journalists and editors but it will have to be proved that the editor knew the publication was damaging
30
Q

What is section 6 of the OSA 1989

A
  • information entrusted to other states or international organisations
31
Q

What is contempt of court?

A
  • This occurs when a person does something that will unfairly influence a court case
  • This may also include making comments in court
  • Focus on d being able to have a fair trial and media has freedom of expression
32
Q

When will the court stop the media from publishing

A
33
Q

What regulates contempt of court ?

A

Contempt’s of court act 1981-

  • Brought in after the ECHR decided that the old law was too strict and violated article 10 ( freedom of expression)
34
Q

What is the significance of the Sunday times v UK

A
  • The old law was too strict and we needed the old law

-

35
Q

Explain the contempt of court act 1981

A

Section 1- Conduct will be contempt if it interferes with the administration of justice in particular proceedings( case )- regardless of intent( strict liability offence)

-

36
Q

What is meant by particular proceedings in section 1

A
  • A case that is currently ongoing ( in hand)
  • If the publication will affect justice( overall system) then it is not contempt
  • It has to impact a particular one case
37
Q

Explain section 2 of the contempt act

A
  • this is important because it establishes the scope of the contempt act
  • S2(1) LOOKS AT WHAT a publication is. includes any speech , writing or other communication which is addressed to the public at large
  • S2(2) strict liability only applies where publication creates a substantial risk to the course of justice which will seriously impeded or prejudiced ( is what is said or written mean that the d is gonna have a fair trial or not ?)
  • s2(3)- strict liability applies to publication which is active
38
Q

What is meant by substantial risk? as apart of section 2 of cCOA

A

THIS Includes

  • The words
  • The profile of the person ie status , how are they being portrayed in the article
  • Proximity of the article to the trial
  • Circulation - ie was it published in a national newspaper ? was it a big circulation ?
  • Pictures used
39
Q

What is the significance of the case of AG v News Group Newspapers (

A

it illustrates what is meant by substantial risk
- Facts = tehri was Establishment of drug taking , the publication was 10 months between his trial and the article

Held = It did not cause a substantial risk because the time gap was so significant

40
Q

What is significance of the case of Woodgate and Bowyer

A

Example of where there has been a substantial risk

Facts- Sunday mirror wanted to publish info which affected trial of ballers

Held= the whole case had to be re=-done with a new jury

41
Q

What is meant by prejudicial impact ?

A
  • Is the publication of the article going to have a negative ,connotation towards the D ?

-

42
Q

Explain section 2(5 of the contempt act

A
  • There is a possible defence
  • Section 5 - public interest defence where anything that is published is in the public interest
  • There needs to be elements that need to be established ie Published in good faith (objective) no slating , 2nd the risk of prejudice is merely incidental (small )
  • Seen in the case of AG V ENGLISH
43
Q

What is the significance of the case of CASE: AG v English (1985

A
  • This is an example of a successful use of the defence

Held = There was incidental prejudice, but it was in public interest for this to be public information

44
Q

What does section 5 not apply to ?

A

Does not protect publications which
- relate to ongoing trials which criticise the D or set out inadmissible evidence

  • Attorney general decides whether there will be prosecution for contempt of court
45
Q

What is meant by the case is active under section 2 (3)

A
  • A case is active after the first formal steps have taken place ie after being arrested , charged
  • Civil cases become active when they have finished paperwork and ready for trial
  • If a person is appealing then it is considered to be active
46
Q

What is the Section 3 defence ?

A
  • this is known as innocent publication
  • this is the idea that they didn’t know that the case was active or they didn’t know they were publishing material about an active case

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