Confidentiality

Question 1

What is confidentiality?

Answer 1

Commercially sensitive information and personally sensitive information - applies to anyone who receives the information

Question 2

What law governs confidentiality?

Answer 2

Human Rights Act 1998 incorporated Article 8 of European Convention on Human Rights into UK law

Guarantees right to respect for privacy and family life

This led to misuse of private information tort

Question 3

What constitutes a breach of confidence?

Answer 3

1. Material must have the ‘necessary quality of confidence’ i.e. diary or confidential docs
2. Must be a duty on person who shared material to keep information secret - ‘obligation of confidence’
3. Unauthorised use of material is to detriment of individual, organisation or company if revealed. I.e. financial loss or affecting someone’s health

Question 4

How can a breach of confidence be proved?

Answer 4

1. Obligation of confidence must be proved
2. Quality of confidence of leaked document must be proved
3. Must be established that publication of leaked document is detrimental to organisation/person

Just because document has ‘confidential’ on it doesn’t mean it’s protected by laws of confidence

Question 5

What can breaching confidence lead to?

Answer 5

1. Injunction preventing publication (person can apply to High Court for an injunction if they find out an org is going to publish something confidential - this bans media temporarily while case is heard)
2. Court order to disclose source so source can be sued for damages and stop future disclosure
3. Order for return of material to be ‘delivered up’
4. Award for damages

Question 6

What defences can be used against breach of confidence?

Answer 6

1. Information lacks quality of confidence
2. Information was already in the public domain
3. Section 12 of the Human Rights Act 1998: revealing information was in public interest

Question 7

What other relevant laws/guidelines are there?

Answer 7

Clause 14 of IPSO code: Must protect confidential sources

Section 10 of Contempt of Court Act 1981: A court or tribunal can order a journalist to reveal their source

However, Article 10 of European Convention of Human Rights states that a journalist doesn’t have to reveal their source unless court deems there to be an ‘overriding’ public interest requirement

Question 8

What cases for confidentiality are there?

Answer 8

Breen v Police Service of Northern Ireland 2009

A Belfast journalist won right to withhold material relating to the Real IRA

A judge ruled that Breen’s life would be at risk if she handed over confidential information