Media Law lecture Notes 6: Confidentiality/Privacy

November 03, 2011


Journalists may want to publish sensitive material as they believe their readers have the right to know the information; however journalists can be restrained to do so through law, or in order to protect their sources of information. 


Prior to the Human Rights Act 1998 UK law recognised fundamental human rights as they have evolved over centuries; however, the general right of privacy (article 8) did not previously exist in UK Law.  


Article 10 states that everyone has freedom of expression, however restrictions on this right has to be justified, in the interest of national security, territorial integrity, public safety, the prevention of disorder or a crime, protection of health, morals, the reputation and rights of others. 


Journalists wanting to have freedom of speech (article 10) may find that privacy laws (article 8) may restrain them. A person wanting to keep a personal story about them may argue for article 8, whereas a journalist would try to justify publication with article 10.  


What is Protected: 


The Breach on Confidence Act is used to protect material such as copyright works, trade and industrial secrets, technical specifications, commercially sensitive information, stories retaining to personal behaviour and national security. 


Outline of Breaching 

  • In a cse in 1969, Mr Justice Megarry gave 3 neccessities which create a breach of confidence: 

  • The information must have the necessary quality of confidence about it. 
  • It must have been given in circumstances  importing an obligation of confidentiality. 
  • The use of such information must be unauthorised.  
Information in the Public Domain 

Once the confidential information has been published to a third party it is then classed as 'in the public domain', and breach of confidence actions can not prevent further publication.

The Difference Between Breach of Confidence and Privacy 

The Law Commission states that Breach of confidence  is related to 'the disclosure or use of information in breach of confidence of information "unlawfully obtained" and it is based on an obligation of confidence owed by one person to another." 

The right of privacy is concerned with the nature of the information of itself, and that certain types of information is categorised as private and should not be disclosed. 

Official Secrets Act:


Sections 1 and 2 of the official Secrets Act passed through Parliament in only 1 day due to the widespread public panic over national security prior to the First World War.


The Act give the court has the power to restrict reports of proceedings involving national security. 


The court may exclude part, or all, of the trial including official secrets if publication of any evidence would be prejudicial to national security. 


However, any sentence must be given in an open court. 


The Government brings actions for breach of confidence as an effective alternative to a prosecution under the official Secrets Act.   


The prosecution must give 7 days notice of any intention to apply for exclusion of the public (and media) before the trial beguines.  


The biggest concern for the media under the Official Secrets Act is in Section 1 (1c), which concerns obtaining or communication secrets. 

Official secrets act 1989 -statutory response to wars (especially cold wars). 

The new act eliminates the public interest defence.

There is no protection if the information was previously published (In the 1980's the Government used the law of breech on confidence relating to the book spy catcher; the injunction was enforced by the use of contempt of court). 

There may be a defence through the Human Right Act (Article 10, freedom of expression) -possibly the best defence would be that the information is damaging to national security.

Defence Advisory (DA) notice system - Voluntary self restraint by national editors when sent a memo by the MoD about information of national security.

What is Protected: 


The 6 areas of information covered by the Official Secrets Act 1989 are: 
  • Security and intelligence matters 
  • Defence 
  • International relations 
  • Information useful to criminals 
  • Interception and phone tapping 
  • Information entrusted in confidence to other states or international organisations. 
Confidentiality:

Journalists have a moral obligation to protect confidential sources of information.

 Common Law Secrets:

Breach of Confidence: People have the right to keep secrets. If somebody who is not entitled to pass on secrets, (eg a lawyer, doctor, close family member or servant) does so, that person has committed breech of confidence.

If someone reveals secret information to a Journalist, this has the potential to be third party breech of confidence, which is a crime.

You need to contact the person who you have secret information on however for a response from them.

If somebody can convince a judge that a third party breech of confidence is about to take place through publication, that person can obtain an injunction to prevent the story being published -this is a very effective 'gag' on the press.

Breech of Confidence Defined:


Has 'the necessary quality of confidence', not just tittle-tattle.
  • Provided in 'circumstances imposing an obligation' (when a reasonable person would think it would be kept secret).
  • There was no permission to pass on the information.
  • 'Detriment' is likely to be caused to the person who gave the information.
If any of the above is missing then the information is not confidential.

Privacy:

Personal secrets or privacy.

Article 8 states: "Everyone has the right to respect for his private and family life, his home and his correspondence". 


You will need to justify intrusions into any individual's private life without consent. Account will be taken however, of the complainant's own public disclosures of information.

Mainly effects reports of celebrities lives and the right to take pictures, or publishing details of someones family life, celebrity or not.

Implicit consent: For example looking at the camera, knowing they're filmed.

Exclusive consent: Get recorded/written consent from the interviewee.

Princess Caroline case 2004.

A fair balance is to be struck between the right to privacy and the freedom of the press. 

The press Complaints Commission state: It is unacceptable to photograph individuals in private places without their consent.

 Private places are public or private property where there is a reasonable expectation of privacy. 


Protecting Sources:


Journalists have the moral duty to protect their sources of information. 


If journalists were perceived by the public to be lacking in moral fibre and revealed their sources, they would loose the trust of the public and no longer receive valuable information. 


Journalists rely o informants for newsworthy information, and therefore strict confidence is the only way journalists can operate. 


Both the PPC (Press Complaints Commission) and NUJ (Nation Union of Journalists) stress the need for confidentiality of sources. 


The PPC states 'Journalists have a moral obligation to protect sources of information.'

Harassment: 

Journalists must not persist in questioning, telephoning, pursuing or photographing individuals once asked to desist. 

They must not remain on anothers property when asked to leave and must not follow individuals they wish to receive information from.

 If asked, they must identify themselves and whom they represent. 

Doorstepping:

Doorstepping is when we confront and record, or attempt to record, an interview with someone for broadcast, or announce that a phone call is being recorded for broadcast, when that person is not expecting to be interviewed for broadcast because we have not made an arrangement with them to do so.

 It often involves an infringement of privacy and should normally be a last resort.Doorstepping can be in person or on the phone or intercom, etc. 

 It can take place on public or private property. It can be for news and factual programmes as well as comedy and entertainment.

Doorstepping does not include vox pops. Doorstepping is a legitimate way of gathering material for the daily news agenda, research purposes or for comedy and entertainment output.

Intrusion Death, Suffering or Distress:

The Press Complaints Commission states: In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication handled sensitively. This should not restrict the right to report legal proceedings, such as inquests. When reporting suicide, care should be taken to avoid excessive detail about the method used. 

The BBC Editorial Guidelines state: We must always balance the public interest in full and accurate reporting against the need to be compassionate and to avoid any unjustified infringement of privacy when we report accidents, disasters, disturbances, violence against individuals or war. We will always need to consider carefully the editorial justification for portraying graphic material of human suffering and distress.

There are very few circumstances in which it is justified to broadcast the moment of death. Close ups of injuries or faces in pain should also be avoided.

Child Privacy:

Miners should not be approached for information or photographed without a custodial parent or guardians permission.

Parents of Guardians should not be paid for material about their children/wards unless it is in the child's interest. 

You can not use the fame or position of a parent/guardian as justification to publish materials regarding their child's/wards private life.  

Exceptions:

Privacy/confidentiality may be breeched with the justification of public interest. 


If  the defence of public interest is being used to justify information being published it must be of high value to the public. 



It is in the public interest to warn people of a dangerous criminal or misleading  politician for example. 

The public interest includes, but is not confined to: 
  1. Detecting or exposing crime or serious impropriety. 
  2. Protecting public health and safety.
  3. Preventing the public from being misled by an action or statement of an individual or organisation.
Injunctions:

Injunctions stop true stories about a persons private lives being made public.


Gagging orders -the publication gagged will have to decide whether breach of an injunction is worth the legal costs if they loose the case. 

An injunction against one media organisation is an injunction against all publishers.


An injunction is usually imposed immediately as an interim measure before a full court hearing.   

Be aware that injunctions with anonymity (not being named, but story can be published) and super injunctions (you cannot even say theres an injunction, not mention the story) are different.


The Government can also use injunctions, for example when guarding official secrets. The Government can argue than it is an invasion of privacy to reveal government secrets. In the 1980's the Government used the law of breech on confidence relating to the book spy catcher; the injunction was enforced by the use of contempt of court.  


If there is a reasonable expectation of privacy, the court will seek to balance the individual's right to privacy against the media's right to freedom of expression.


You can also get an injunction to stop your material being misused. 


When applying for an injunction you must be confident that you will win the case, as if you loose you are liable to compensate your opponent for loss of earnings; therefore, it is always important that injunction cases go to court quickly. 


Note: Appeals from the High Court and County Courts are heard in The Court of Appeal (Civil Division) . It is the final court of appeal for the granting or refusal of injunctions.

Max Mosley Case is highly significant.  


In the public interest, or just interesting to the public?


Notes: 


Confidentiality -official secrets act, test of confidentiality

Privacy -Dispute territory between article 8 (right to a private and family life) and article 10 (freedom of speech).

In the public interest -Not just of interest to the public.   

PCC Definition: Detecting or exposing crime or serious impropriety. Protecting public health and safety. Preventing the public from being misled....