Week 5: Breach of Confidence

Question 1

What is ‘breach of confidence?’

Answer 1

If a newspaper or broadcaster publish or broadcast information which has been labelled ‘confidential’ then the newspaper or broadcaster could be taken to court for breach of confidence.

Question 2

What is ‘confidential information’?

Answer 2

the information must have ‘quality of confidence‘

This means that the information should not be in the public domain

or

readily available from another source (though the fact that the information may be known to a limited class of persons does not destroy confidentiality)

and it should have a degree of sensitivity and value.

if the breach of confidence damages the company’s name/reputation it was possibly confidential

there was an unauthorised use of that material

Unauthorised use of informationmeans – The information must be used in an unauthorised way so as to cause detriment to the person who has raised the action.

From the authorities it is unclear whether it is always necessary to prove damage or detriment.

It is not necessary to prove dishonesty.

Question 3

How can confidence be breached?

Answer 3

Breach of contract – disclosing confidential information about an employer. The employee has signed a contract to state that they will not divulge sensitive information.

Non-disclosure agreements are also examples.
Personal relationships – 1967 – the Duchess of Argyll prevented the People newspaper and her former husband from publishing marital secrets.

Unethical behaviour from journalists –
Information collected via trespass, theft, listening devices or long range cameras are usually in breach of an obligation of confidence.

Breach of confidence and the official secrets act

Question 4

Does the company suing for breach of confidence need to prove the information was confidential?

Answer 4

Company or person will usually need to show evidence via a confidential document or breach of contract

Question 5

Damages - OK! vs Hello!

Answer 5

OK! had signed an exclusive deal with Douglas and Zeta-Jones to publish pictures from their wedding 2005

Hello! then ‘undermined’ this deal by publishing pictures from the wedding “secretly taken by an undercover paparazzo”

The result – Hello! had to pay OK! £1million because this breach of confidence caused commercial loss

Question 6

Account of profits

Answer 6

A court may rule that the person who misused the information should pay some or all of the ill-gotten profits to the party betrayed.

Question 7

Freedom of expression

Answer 7

Actions seeking an interdict against the media usually fall under section 12 of the Human Rights Act 1998.

Section 12(4)
The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a) the extent to which—
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;

Question 8

Defences?

Answer 8

Information did not have the necessary quality of confidence

• Didn’t cause much detriment or it was trivial
• Already in public domain

Public interest

Correcting ‘a false public image’

Question 9

Public interest

Answer 9

• In 1984 the daily express won a case in the court of appeal on the grounds of public interest.
• They ruled that the daily express was allowed to publish info from an internal memo, leaked from a company making breathalyser equipment which cast doubt on its accuracy at a time when people were using it to clamp down on drink driving

Question 10

Correcting a ‘false public image’

Answer 10

• In 2005 David and Victoria Beckham failed to get an injunction (interdict in Scotland) against news of the world about a story containing info about their marriage
• NoW argued the couple had portrayed a false image about their private life so it was in the public interest for it to publish info from the private nanny
• Nanny told NoW there were blazing rows
• Judge agreed it was in public interest

Question 11

Revealing a source

Answer 11

A court can order a journalist to reveal the source who provided the journalist with the confidential information

If the journalist promised the source anonymity, then the journalist will need to face the consequences if the journalist refuses to name the source
Refusing to name the source could be seen as contempt of court and the journalist could face jail

There may be protection under Article 10 of the European Convention of Human Rights and the ‘Shield Law’ in section 10 of the Contempt of Court Act 1981.

Question 12

Article 10 of the European Convention of Human Rights

Answer 12

• A court can order a journalist to reveal the source who provided the journalist with the confidential info
• If the journo promised the source anonymity, then the journo will have to face the consequences if they refuse to name the source
• Refusing to name the source could be seen as contempt of court and the journalist could face jail
• There may be protection under article 10 of the European convention of human rights and the ‘sheild law’ in section 10 of the contempt of court act 1981

Question 13

Protecting sources

Answer 13

there is an ethical obligation to protect sources of information who wish their identity to remain confidential, as expressed in Clause 14 of the Editors’ Code of Practice

This obligation, as expressed in either code, means that a journalist or/and media organisation has to be prepared to be fined or jailed for a refusal to obey a court order to reveal such a source’s identity or for a refusal to disclose material which may do that, because such refusal could be ruled to be a contempt of court.

Question 14

IPSO – Clause 10 – 
*Clandestine devices and subterfuge

Answer 14

i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held information without consent.
ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.

Question 15

Whistleblowers

Answer 15

Whistleblowers are protected by UK law if they reporta criminal offence, ahealth and safety violation, risk or damage to the environment, or a miscarriage of justice.

The Public Interest Disclosure Act 1998protects employees who make disclosures of certain types of information.

Question 16

personal data and general data protection regulation (gdpr)

How does how information is collected about a person affect journalists?

Answer 16

If information is collected through “underhand methods” and is not in the public interest, then a journalist may be prosecuted.

Question 17

Article 5 of GDPR

Answer 17

Personal data must be:

Processed lawfully, fairly and in a transparent manner

Collected for specified and legitimate purposes only

Adequate, relevant and limited to what is necessary for those purposed

Accurate and, where necessary, kept up to date

Secure.

Question 18

What rights to data subjects have?

Answer 18

GDPR allows them to see the information held about them, have it corrected, amended or even removed.

HOWEVER…

Material processed for journalistic purposes is exempt from these rights.

Journalists and news organisations holding information for journalistic purposes are not required to respond to questions what data they hold

and are not obliged to comply with requests to remove it

Question 19

under what law is it an offence to obtain personal data without the consent of the data controller?

Answer 19

Clause 161 of the Data Protection Bill –

it’s an offence for anyone knowingly or recklessly and without the consent of the data controller,
to obtain personal data and give to another person

Retain unlawfully obtained personal data

Journalists should never obtain personal data by pretending to be someone else

They should never pay someone to leak personal data

Public interest can be used a defence to show that it was necessary to disclose the information in order to prevent or detect crime.

Question 20

Obtaining information from the police

Answer 20

Usually victims don’t want their names to be given out and the police should honour these requests

UNLESS they think there is an exceptional reason to releasing them such as helping to solve a crime

This doesn’t apply to dead people, so does not prevent the police from releasing the names

But, family is usually notified before the name is released

Question 21

Remedies

Answer 21

Interdict (otherwise known as an Injunction in England);

Damages or account of profits;

Delivery up of material containing the confidential information.

Question 22

Interdict

Answer 22

An interdict (injunction in England) can be issued by the courts to prevent the broadcast or publication of the confidential information

An interim interdict can be issued if a company/person is alerted to the information before it is
published/broadcast

If an interdict is broken, this could be seen as contempt of court and could lead to criminal action against the media outlet.

Question 23

Goodwin vs UK 1996

Answer 23

• Mr Bill Goodwin was a journalist
• He was fined £5000 for refusing to reveal the name of his source for contempt of court under section 10
• Took his case to the ECHR and argued that being punished for refusing to reveal his source violated his right to free expression under Article 10 of the human rights convention
• He won his case and the court emphasised the important role of free expression and the free press in a democratic society
• The court said that protecting journalists’ sources is crucial for a free press because otherwise people may not come forward with information of public importance if theyre afraid their identity wont be protected

Question 24

Key issues to note if protecting a source

Answer 24

Journalists’ communications can be intercepted if a warrant has been sought after from the security and intelligence services to the Home Secretary

Communications can be intercepted.

Police can apply to a High Court judge through to ask journalists and media outlets to surrender material.

Police can also use the Terrorism Act 2000 and section 9 of the Official Secrets Act 1911 to make searches.

Question 25

The police had asked the then Northern Editor of Ireland’s Sunday Tribune newspaper to produce notes and records to them of a phone call she received from a spokesperson for the Real IRA terrorist group.
In this phone call, the spokesperson was claiming responsibility for two murders.
What happened? Did the police get the information?

Answer 25

Article 2 of the European Convention of Human Rights – protects the right to life
.
A judge accepted this argument.

The judge ruled at the her life would be at ‘real and immediate’ risk from the Real IRA were she forced to produce the information.
For the record, she has condemned terrorist violence.

Question 26

what is the law?

Answer 26

section 5: common law and statutory obligations of confidence

obligation of confidence: The duty not to make public or known to a third party some secret or private information that was expressly or impliedly imparted under a relationship of confidence

common law duty of confidence: The common law of confidentiality is a broad principle of law that a person who receives information from another party in confidence cannot take advantage of it. That person must not make use of it to the prejudice of the person who gave the information without obtaining his consent.