Privacy and confidentiality: definitions and defences

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

Chapter 27: News-gathering – avoiding intrusion

Judges consider the rights to respect for privacy under Article eight alongside Article 10’s right to freedom of expression.

Civil law may be breached if people have been photographed, filmed or recorded without their consent. A judge should ask these such questions:

• Did the individual have ‘a reasonable expectation of privacy’?
• Has the person been persistently harassed by the media? Therefore can have public place exceptions
• Was the person in a condition, situation or event giving rise to a reasonable expectation of privacy, even though the individual was in or could be seen from a public place?
• Is there a ‘public interest’ exception to the rights of privacy?
• Is the photo or footage or recording so widely published that a ban would be pointless?

Courts also consider the degree of harm the publication could cause and the detail/extent of the images captured, for example covert photography is likely to be more intrusive.

There is no law banning photography or filming or recording in public places but the Protection from Harassment Act 1997 deals with ‘stalkers and paparazzi who hound celebs. Harassment is not defined in detail under the act but can include causing alarm and distress more than once.

The Editors’ Code of Practice and Ofcom Code give guidance on when publication is unethical. Breaching the codes may not be breaching privacy law but complying can reduce the likelihood of a privacy lawsuit.

• Everyone is entitled to respect for his or her private and family life, home, health and correspondence
• Editors will be expected to justify intrusions into any individual’s private life without consent
• It is unacceptable to photograph individuals in private places without their consent

Doorstepping is the filming or recording of an interview or attempted interview, or announcing that a call is being recorded for broadcast purposes without any prior warning. This is an ambush technique which can be used against someone who is unlikely to agree to an interview.

Clause eight of The Editors’ Code makes it a necessity for journalists to identify themselves and obtain permission before entering non-public areas of hospitals or similar institutions. There needs to be a two- stage consent: one before recording begins and another for broadcasting the footage.

Under the Editors’ and Ofcom codes, journalists should respect an individual’s refusal.

• Journalists must not engage in intimidation, harassment or persistent pursuit
• They must not be persistent once asked to desist or leave and if requested journalists must identify themselves and who they represent
• Editors must ensure these principles are observed by journalists

Approaches involving grief or shock must be made with sympathy and discretion, publication must be handled sensitively. Articles breaking this news should not contain graphic detail likely to add to the distress as the breaches clause five.

Protecting children’s privacy and welfare

• Young people should be free to complete their time at school without unnecessary intrusion
• Under 16s must not be interviewed or photographed on issues involving their own or another child’s welfare unless a responsible adult consents
• Pupils must not be approached or photographed at school without the permission of the school authorities
• Minors must not be paid for material involving children’s welfare, nor parents or guardians unless it is in the child’s interest
• Editors must not use the fame, notoriety or position of a parent or guardian as sole justification for publishing details of a child’s private life

Ofcom states that broadcasters should pay particular attention to the privacy of under 16s; consent must be obtained by a parent, guardian or an adult in loco parentis and wherever possible the individual concerned. Consent may not be needed is the subject matter is trivial or uncontroversial.

There are public interest exceptions including exposing crime or negligence imperilling people’s safety and exposing deception by an organisation or a hypocritical politician.

Publishing material from social media sites could potentially be a breach of copyright and an intrusion into privacy if the individual was portrayed in a private situation and was unaware of the uploaded content.

Chapter 28: Data Protection

Data protection law safeguards personal information stored on computers and filing systems. There are three ways in which this law affects journalists:

• Using underhand methods to gain access to personal data can lead to prosecution unless journalists can be protected under the public interest defence
• Institutions sometimes misunderstand data protection law when claiming it stops them releasing information to the media
• Journalists create and store data so we must be lawful in how they process and publish sensitive data to avoid court cases

A data controller determines the purposes and manner for which any personal data is processed. Media organisations and freelance journalists are data controllers and must be on a public register. A data subject is a person about whom the information is held.

Data handlers must comply with principles under the 1998 Act, for example data must be:

• Fairly and lawfully processed
• Processed for limited purposes (provided for a specific purpose)
• Processed in accordance with the data subject’s rights
• Secure

Section 55 states that ‘a person must not knowingly or recklessly, without the consent of the data controller’ obtain or disclose personal data or provide the disclosure to another person.

‘Blagging’ by a journalist to gain personal data could be an offence under this section and it might also be an offence to persuade or pay someone to leak personal data.

Defences are available to those who act in the reasonable belief that they would have obtained permission from the data controller for their actions including the public interest clause and that obtaining the information was necessary for the purpose of preventing or detecting crime.  A conviction under section 55 can impose a £5000 fine or up to two years imprisonment.

Data is only personal if it can lead to an individual being identified.

Requests to the police can be made to withhold information from the media; this can be treated on a case-by-case basis. However, victims, witnesses or next of kin are not entitled to ask for information not to be released.

Guidance for court staff in regards to the Data Protection Act states that legislation ‘must not be used as a blanket excuse for withholding information’.

The Act provides particular privacy protection for sensitive personal data, including information about:

• Racial or ethnic origin
• Political opinions
• Religion
• Trade union membership
• Physical or mental health or condition
• Sexual life
• Criminal offences and any proceedings for an offence alleged to have been committed

Sensitive personal data can only usually be processed lawfully if two conditions are met: there must be explicit consent or the data subject has deliberately made the information public; or the purpose of information was necessary for the administration of justice.