Privacy Law Flashcards
Breaches of Confidence
Media can be sued if what is planned to be published would be a breach of confidence.
Criteria to assess whether breach has/will happen:
1. Whether information which is to be or has been published has the ‘necessary quality of confidence’
*Sun Printers v Westminster Press decided relevant information, though labelled confidential had been too widely circulated to have this quality.
2. If the information was originally communicated in circumstances imposing an obligation of confidence
3. If there is likely to be/has been unauthorised use of that information to the detriment of the party who originally communicated it.
What happens if court decides there has been a breach?
Media organisation will be liable to pay damages or ordered to state an account of profits.
Legal remedies to breaches of confidence
Person can seek:
- a court injunction forbidding publication (if go ahead guilty of contempt)
- court may order media organisation to ‘deliver up’ so hand back
- court may order disclosure of the source
Media Defences to breaches of confidence
Can try and argue information is not confidential.
Can argue that publication is in the public interest.
Can try to use ‘shield law’ Section 10 of Contempt of Court Act 1981 to refuse to disclose the source of information:
- not required to disclose source of information unless necessary in the interest of justice, in the interests of national security, or for the prevention of disorder or crime
Section 10 of the Contempt of Court Act 1981 (Protection of sources)
Journalists not required to disclose source of information unless necessary in the interest of justice, in the interests of national security, or for the prevention of disorder or crime
Ethical considerations for protection of sources
Clause 14 Editor’s Code of Practice used by IPSO ‘Journalists have moral obligations to protect confidential sources of information.’
Practical measures to protect sources
Taking care with material kept on a computer/memory stick which could be seized, using untraceable pay-as-you-go phones regarding anyone’s identity who may be sought by official agencies, and not carrying smart phones to meetings with confidential sources in case it is tracked.
Examples where court unsuccessfully tried to order journalists/media organisation to reveal sources
- 2009 Suzanne Breen, Northern Editor of Ireland’s Sunday Tribune newspaper. Judge accepted Article 2 rights that she should not be compelled to produce police notes/records of phone call received from spokesperson for Real IRA claiming responsibility for two murders as ruled her life would be at ‘real and immediate risk’.
- 2000 Ashworth High Security Hospital obtained order that Daily Mirror should disclose source of story on Ian Brady’s treatment at the hospital. 2006 High court judge ruled it was in the public interest to protect the journalists’ source.
Article 8 of ECHR states…
‘everyone has the right to respect for his/her private and family life, his home and his correspondence’. If breach of privacy alleged, judge must decide if breach of Article 8.
Was there ‘a reasonable expectation of privacy?’
Legal options to breaches of privacy
In law to protect privacy judge can make an injunction to forbid publication of the material, or if already published order publisher to pay damages to person whose privacy was infringed and injunct further publication.
Can decide that public interest defence overrides right to privacy.
What does reasonable expectation of privacy USUALLY cover?
- Information concerning health/mental illness e.g. Peck v UK ruled by ECHR that CCTV footage of man’s suicide attempt in a public street in which he is identifiable breached privacy rights under Article 8 as he was mentally ill.
- Sexual relationships incl. adultery and use of privacy e.g. Max Mosely v News Group Newspapers ruled exposure by News of the World of footage of his participation in an orgy was beach of his privacy and there was no public interest in revealing it.
- Children more likely to be regarded by courts as needing protection than adults e.g. Weller v Associated Newspapers who published pictures of his children. Ruling that they should have pixilated the images and was breach of privacy.
- Undercover filming to discover things likely to be seen as breach of privacy.
- If history of harassment it can be seen as limiting the right to social interaction e.g. Princess Caroline of Monaco.
Clause 2 Privacy ECOP
- Everyone entitled to respect for his/her private and family life, home, health, and correspondence incl. digital communications.
- Editors expected to justify intrusions to privacy without an individual’s consent. Account taken of complainants own disclosures of information.
- Unacceptable to photograph individuals without their consent in a place where reasonable expectation of privacy.
Intrusion into Grief ECOP
Inquiries/approaches must be made with sympathy and discretion and publication handled sensitively.
Should not be the one to disclose death to a relative.
Children ECOP
Children should be:
- free from intrusion
- cannot be photographed/filmed at school without permission of the school
- must not be photographed/filmed or interviewed about issues involving their own/any child’s welfare without parental consent.
What is the public interest?
- Includes but not confined to: detecting/exposing crime, protecting public health and safety, protection from being misled, disclosing miscarriage of justice, raising/contributing to matter of public debate, disclosing concealment of the above.
- Pub Interest in freedom of expression itself.
- Regulator will consider extent to which material is already in public domain
- Editor’s invoking need to demonstrate reasonably believed publication would serve the public interest.
- Exceptional public interest needed to override interest of children under 16.
