Human Rights- Breach of Confidence

Question 1

Right to privacy + breach of confidence + case examples

Answer 1

UK doesn’t have an explicit right to privacy
Kaye v Robertson (journalist + photographer disguised themselves as hospital staff to take pictures of C after a car accident) - failed because Lord Justice Glidewell = “it’s well known in English law there is no right to privacy, and accordingly ther is no right of action for breach of a person’s privacy”
(before HRA)

Wainwright v Home Office - mother + son strip searched and humiliated - son developed PTSD - 1st time HOL asked to declare whether there was an action for invasion of privacy. Lord Hoffman = no domestic law protection, so Article 8 wouldn’t be of help- did not recognise a tort of invasion of privacy
(also pre HRA)

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BoC= designed to protect against publication f material that someone - usually the owner - wants to keep secret.
– Prince Albert v Strange = Strange obtained sketches + arranged a public viewing of them - Albert wanted a claim for their return - granted

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2005 - author J.K. Rowling won an injunction preventing publications of the details of her upcoming book
X v Y = 2 doctors AIDS - not in public interest
Douglas and Others v Hello = couple sued Hello magazine for publishing photos of their wedding - sold exclusive rights to OK magazine - held right of celebrities to sell rights of photos to certain magazines akin to a trade secret
Venables and Thompson v News Group Newspapers

Question 2

Elements

Answer 2

Coco v A.N. Clark:

1) The information disclosed/about to be disclosed ‘has the necessary quality of confidence’
- Info. must have a degree of importance - won’t protect trivial matters.
- E.g. commercial products, trade secrets, people’s sex lives, health treatment etc.

2) Information obtained in circumstances which imposed ‘an obligation of confidence’
[I] Person must realise info. was intended to be confidential (lawyer-client, priest-parishioner, doctor-patient)
[II] Other situations = employer-employee - Archer v Williams (Lady Archer obtained injunction against PA- confidentiality clause in contract)
[III] Obligation of confidence can be created in circumstances info was obtained in
–AG v Guardian Newspapers - Lord Goff gave e.g. of confidential document being wafted out into the street - under oblig. because obv. info. private
[IV] Info. passed in personal relationships (but much more likely to be misuse of private info. claims)

3) Defendant has made/intends to make unauthorised use of the information

Question 3

Defences

Answer 3

1) Consent
2) Information in Public Domain
3) Public Interest

2) Information in Public Domain
- If it’s already known, can’t be considered confidential
–Lennon v News Group Newspapers - John Lennon refused an injunction to prevent his ex-wife from selling stories about their marriage as they had both talked about their relationship in the past
- Test is whether it was known to a ‘substantial number of people’

3) Public Interest
- Public interest in receiving confidential info > public interest in protection for confidential info.
- Distinction between public interest and what the public are interested in
–X v Y= 2 doctors with AIDS - not in public interest
– Lion Laboratories v Evans = employee of company that made breathalysers leaked they weren’t as accurate as claimed - in p.i cause could lead to a wrongful conviction