Media Law: Confidentiality

Whilst studying libel, I learnt that in court cases, the offending person does not have to prove that they have been harmed by the defamation, but prove beyond reasonable doubt, that the publication could cause harm to them. With privacy, the person has to prove that they have been harmed in some way. For example, businessmen must prove that their company has lost money due to the breach of confidentiality.

The 3 main areas of concern regarding confidentiality are:

1. State Secrets (e.g Government, Army)
2. Commercial Secrets
3. Privacy

The law states that a person who has obtained information in confidence must not take unfair advantage of it.

The 3 elements of a breach of confidence are:

1. The information must have "necessary quality of confidence"
2. The information must have been imparted in circumstances imposing an obligation of confidence
3. The unauthorised information is detrimental to the party communicating it.

All of the above must occur together in order for it to be a breach of confidentiality.
People who believe they will have their confidence breached can ask for an injunction. Judges can grant injunctions preventing all publications from printing confidential information.
Disobeying and injunction can result in an action for contempt of court.
Courts use breach of confidence actions to prevent "the unjustified publication of private information"
Courts can also order journalists to reveal the name of their source who provided them with confidential information.
Article 8 of the Convention of Human Rights guarantee the right to privacy. The most favoured way to protect privacy has been the action for breach of confidence.
Judges are prepared to infer a relationship requiring confidentiality where no other obvious relationship exists. They also ask whether the claimant had "a reasonable expectation of privacy"
However, the good news for the journalists is that there is a defence that publication is in the public interest.

A Journo's Guide On How Not To Breach Confidence

Step 1: Announce that you are a journalist
Step 2: Provide details of the publication
Step 3: Warn persons involved of breach of confidence. Treat them like idiots to make them understand that information they may divulge, if published, may lead to them losing their jobs, and generally ruining their lives.

Gagging Clauses: If a person is employed by another, they owe the employer a common law "duty of confidence" even if it is not specified in the contract. This secrecy could extend to matters of public concern. In these cases, there is a duty to report this to the employer.
The concept of public interest, in basic terms, is the opposite of malice.
The Press Complaints Commission (PCC) define code of conduct in the following ways:

• Material that exposed crime when police have failed to do so.
• Exposing harm to the community
• Public being misled

Below is a link for Public Concern At Work, otherwise known as whistleblowers:
http://www.pcaw.co.uk/

Important cases into this topic are:
Graham Pink- NHS worker fired for highlighting poor hospital conditions.
Bill Goodwin- Journalist who refused to identify a source in court.