An obligation of confidence arises from the circumstances in which the information is given – a relationship in which one party owes a duty of confidence to another.
A right of privacy relates to the nature of the information itself – based on the idea that certain information is private and for that reason alone should not be disclosed.
Human Rights Act 1998: Article 8 guarantees the right to respect for privacy and family life. Article 10 right to freedom of expression
The act also states: There shall be no interference by a public authority except in the interest of national security, public safety, the economic well-being of the country, prevention of crime, protection of health or moral or protection of the rights and freedoms of others.
A journalist publishing leaked information in the public’s interest is still breaking the law; they usually have a duty not to reveal the information.
There are three elements in a breach of confidence:
- Must have ‘the necessary quality of confidence’
- Must have been imparted in circumstances imposing an obligation of confidence
- There must be an unauthorised use of that information to the detriment of the party
The law of breach of confidence safeguards ideas and information but it is not confidential if the information is trivial or already in the public domain.
An obligation of confidence can arise in a variety of ways:
- Contractual relationship – employees have signed agreements not to disclose an employer’s secrets
- Personal relationship – protection of kiss-and-tell stories including less formal relationships
- Unethical behaviour – journalists who obtain confidential information by unethical means such as trespass, theft, listening devices or long range cameras are in breach of confidentiality. If there is no obligation of confidence then this will be covered in privacy law.
A person or an organisation who discovers that the media intend to publish confidential information without their consent can apply to the High Court for a temporary injunction to stop it. A claimant has other options including: suing the publisher for damages, seeking a court order for the confidential material to be ‘delivered up’ (all copies to be destroyed or given back to the claimant) or asking a judge to order the publisher to reveal the source so that they can be sued or stopped from revealing more.
A super-injunction is a ban on even the mention of the existence of the proceedings.
Disobeying an injunction can result in an action for contempt of court.
Journalists should approach the person alleged in the confidential information to get their side of the story and check the facts. This is known as giving a fair opportunity to respond to the allegations and the right to reply.
Defences include: the information did not have ‘the necessary quality of confidence’ and it was in the public interest to publish the information.
A claimant seeking an injunction about his/her private life must demonstrate that they have a reasonable expectation of privacy.
The media have to be careful about children’s privacy, especially those of celebrities. The privacy law protects them from intrusive media attention.
Information concerning health is usually treated as of the highest confidentiality.
*Naomi Campbell case study*
Journalists who use electronic equipment to spy on others should know they are not only infringing privacy but committing a crime.
Data Protection Act 1998 ensures data must be:
- Fairly and lawfully processed
- Processed for limited purposes
- Processed in accordance with the data subject’s right
- Secure
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