Part 3 - Confidentiality, Privacy, and Copyright Flashcards
What did current privacy law develop out of?
Common law tort of breach of confidence.
What does the tort of breach of confidence focus on?
Unlawful release of confidential information, usually commercial secrets, by someone who knows they were under obligation to keep material confidential and were not authorised to do so.
What does the tort of misuse of private information focus on?
The inherently private nature of material itself.
What three elements does the claimant need to prove to successfully claim breach of confidence?
- quality of confidence - i.e. not in public domain/trivial information
- info imparted in circumstances imposing obligation of confidence and person who released info knows they should not have done so.
- breach of confidence to detriment of persons who originally communicated it.
What is important to note about the ‘confidential’ stamp some documents have?
It carries some weight in determining court’s decision as to quality of confidence.
What implicitly demands an obligation of confidence?
Most employment contracts.
What do some judges say should always be treated as confidential?
Private information.
What is important to note about the use of the word ‘damaging’?
It is loosely defined, not necessarily financially detrimental.
What are four remedies for breach of confidence?
- injunction to prevent publication of confidential material
- damages
- delivery up
- account of profits
What are two defences against breach of confidence?
- The info is already in the public domain
2. Public interest
What happens to the need for a pre-exiting relationship in privacy cases? Explain.
It is negated - the law now imposes a duty of confidence when person receiving info knows/should know it is confidential/private.
What gets particular protection? (two)
Photos revealing private info and information about health.
What can be a justification for publishing photos which reveal private info?
Over-riding public interest.
If there is clear public interest justification for publishing a photo, what is asserted?
Article 10 of the European Convention of Human Rights.
What is asked when the photos are of famous people or public figures?
Do the pictures contribute to a ‘debate of general interest to society’?
What is the two stage test for privacy?
- Is there a ‘reasonable expectation of privacy’? If yes, Article 8 is cited.
- Article 8 is then weighed against Article 10 rights of media.
What must also be considered by courts in a privacy case? Explain.
‘Any relevant privacy code’. Editors’ Code and Ofcom Code work alongside the law. Editors’ Code clause 3 and Ofcom Code section 8.
When are photos/footage more likely to be deemed intrusive? Explain.
If the subject is a child. Even if taken in a public place, always treat photos of children as private.
Which regulatory codes have privacy clauses and what do they work alongside?
Editors’ Code and Ofcom Code. Work alongside the law.
What are privacy clauses subject to?
Public interest exemptions.
How do we know if clauses in regulatory codes are subject to public interest exemptions?
They are marked with an asterisk.
What does the public interest include? (seven)
i. Detecting or exposing crime or serious impropriety.
ii. Protecting public health and safety.
iii. Preventing the public from being misled by an action or statement of an individual o organisation.
iv. Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.
v. disclosing a miscarriage of justice
vi. raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.
vii. disclosing concealment, or likely concealment, of any of the above.
What is there also a public interest in?
Freedom of expression itself.
What must editors do when public interest is invoked?
Demonstrate fully that they reasonably believed that publication/journalistic activity undertaken with a view to publication would be in the public interest and how, and with whom, that was established at the time.
