Privacy Flashcards
Criteria to be sued for breach of confidence
A media organisation can be sued by an individual, company or a government department if it publishes something deemed to be in breach of confidence:
- Whether the material has the necessary ‘quality of confidence’ e.g. medical records of company secrets would confidential.
- Whether the information was originally communicated in circumstances imposing an ‘obligation of confidence (not to share) e.g. patient telling a doctor they think they may be pregnant or plans for a new design or product e.g. iPhone design
- If there has been unauthorised use (publication) of that information to the detriment of the party who originally communicated it e.g. financial loss, loss of work or embarrassment
What do legal remedies in civil law include?
- An injunction (court banning publication) - if media goes ahead and publishes breaching the injunction it could be prosecuted for contempt or court - fine or jail
- Court may order organisation to ‘deliver up’ the confidential info e.g. customer database
- Court may order journalist to disclose the source of info - confidential sources
- Damages - media to pay the owner of confidential info for loss
- Media may be ordered to state account of profits (how much it has profited from publication)E.
What is breach of confidence?
E.g. you go to the doctor for a pregnancy test - that disclosure places an obligation of confidence on the doctor. Paper blows out of the window and is picked up by a reporter – shouldn’t publish it – duty of confidence passes to person who picks up the paper.
As an employee you owe your firm a duty of confidence in relation to new products or processes.
A document simply marked confidential doesn’t necessarily meet the ‘quality of confidence’ threshold
Sun printers v Westminster Press (Watford Observer)
The court of appeal ruled that plans to make workers redundant had already been circulated widely - to trade unions etc, so didn’t have the necessary quality of confidence - so it was ok for the Watford Observer to publish the info - locals should know how many jobs might be lost
Defences for breach of confidence
- Info didn’t have the necessary ‘quality of confidence’
- Publication was in the public interest
- Article 10 ECHR says journalists shouldn’t be forced to reveal their sources unless in interests of justice, interest of national security or prevention of disorder and crime
Ryan Parry v the Queen
Mirror reporter Ryan Parry got a job as Buckingham Palace footman in 2000 using bogus references.
He served the queen breakfast and took pictures of the bed President George Bush slept in and prepared forms arrival.
Mirror claimed it was exposing security issues at Buckingham Palace. The Queen eventually applied for an injunction to prevent the Mirror publishing further stories
Suzanne Green case - Article 2 - right to life
2009 a judge accepted the article 2 rights of Suzanne Breen, the then editor of Ireland’s Sunday Tribune newspaper, meant she should not be compelled to give police notes and records of a phone call she’d had with a Real IRA spokesperson.
Judge ruled her life would be at ‘real and immediate danger’ if she was forced to produce the info
Privacy law - celebs and how it can be breached
Celebs and others use privacy law (misuse of private info) to prevent media intrusion into their lives and activities.
They can sue for the tort of misuse of private information in the High Court or seek an injunction to ban publication of private info
Privacy can be breached by:
1) the intrusive act of gathering private information (intrusive photography, filming etc) which in itself distresses the subject or the discovery of it distresses the subject and was done without their consent.
2) By publication of that information without their consent - many have won large sums of money for media intrusion e.g. daily mirror, Sunday mirror and Sunday people phone hacking cases
but a judge can rule there’s public interest in some cases
Location matters.. why?
If somebody is in a public place they still have a ‘reasonable expectation of privacy’ if they are in distress, mental anguish, grief, unwell, suffering etc e.g. car crash. suicide attempt
The exception is terror attacks due to the huge public interest in reporting the horror of such atrocities
In such circumstances we can use a picture or video footage in our story but should take care to pixelate it so that the person cannot be identified
Aim is to prevent relatives and friends suffering shock if they’ve not yet been informed of their loved one’s accident/injury/death
There will normally be a ‘reasonable expectation of privacy’ within the interior of someone’s home
max mosely and Paul Weller example
max mosely breach of confidence
Paul Weller and his wife Hannah won £10,000 damages for three of their children whose faces were ‘plastered’ all over the Mail Online website in October 2012. The singer sued Associated Newspapers on behalf of his daughter and two sons who were papped while on a shopping trip in California.
The judge said the children had a ‘reasonable expectation of privacy’ even though in a public place
The decision was upheld by the Court of Appeal which said they were only of interest because they were Weller’s children and publication wasn’t in the wider public interest
Method used to obtain info
The court will consider the method by which the private info was obtained:
So if someone has been filmed or photographed without their knowledge they could be more likely to succeed in a privacy action because they may have reasonably expected the situation was private. Princess Caroline of Monaco (Von Hannover Vs Germany
If someone has been repeatedly harassed or stalked by photographers they might be more likely to be able to persuade a court has breached their human right to social interaction
Weighing up article 8 and article 10 rights
When a media organisation or journalist is the defendant in a privacy case, the court will weight up the claimant’s right to privacy with the defendant’s right to freedom of expression and the public’s right to receive that information – public interest defence
Article 10 says: 1. “Everyone has the right to freedom of expression.This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”
Sir cliff Richard case -Those under investigation by the police or any other official agency are protected under privacy law
A media organisation which identifies such as person as being under investigation – or reveals their home or office has been searched or they have been questioned – could be successfully sued for damages for misuse of private information:
If they are not charged - They can seek an injunction to prevent publication of the fact they are under investigation
This came about as a result of the Sir Cliff Richard case
He successfully sued the BBC after a police raid on his Berkshire home was televised while he was away in Portugal
The star had no knowledge an historic allegation of sexual abuse had been made against him
He was never arrested or charged
Case law is not clear yet if the person is arrested
If arrest takes place in public publication of the fact may be less likely to breach privacy
If there is an ’exceptional factor’ ie the person is mentally ill, this could still be deemed a breach of privacy
However, if the police or other investigative agency releases this information for a ‘legitimate purpose’ the media can safely publish
What will the court consider?
Whether publication has contributed to ‘a debate of general interest to society’
How well known the claimant is? – ie do they have a role to play in public life beyond a political role (this may mean a reduced right to privacy)
Claimant’s prior conduct – have they courted the media/sought publicity in the past?
Does the information published show he or she is hypocritical or has projected a false image previously – ie had an affair when they’ve spoken out about family values, or taken drugs when holding an anti-drugs stance in public?
How harmful was publication to the claimant?
Was it proportionate for any of the information to be published?
Extent to which the information was already in the public domain
What the ethical codes of conduct say – IPSO and Ofcom codes
How can the media minimise the chance of a privacy law suit
By having regard to the principle of ‘proportionality’ - only publishing part of an image or footage.
Obscuring or pixelating the face of a vulnerable person - someone in mental distress (suicidal) or in pain after an accident in a public place etc
Not showing the face of a celebrity’s child when a picture is taken in a public place
