Confidentiality and Privacy

Think before you print

People who believe their privacy is about to be infringed can use the law of breach of confidence to prevent intrusions. A duty of confidence arises from the circumstances in which confidential information comes to the knowledge of a person. A right to privacy in respect of information would arise from the nature of the information itself, based on the principle that certain kind of information is private and for that reason alone should not be disclosed.  

 

Take for instance the scenario when a patient tells a doctor some confidential information, the doctor owes a duty of confidence to the patient. To enforce the law of confidentiality, a court does not require there to be a direct relationship between the person who wishes to protect the information and the person who want to disclose it. The legal criterion is whether a reasonable person would understand form the nature and circumstances of a disclosure of information that they were receiving it in confidence. 

 

A journalist who receives leaked information usually has a duty not to reveal it to others. In the past newspapers have leaked information, on the duty that it is significantly in the public’s interest; however this is still breaking the law. Take for example the whistle-blower Edward Snowden. Last year he leaked National Security Agency documents to journalists. He revealed documents that detailed global surveillance causing huge controversy over whether he is a hero or a traitor, sparking widespread debates over government secrecy and mass surveillance. 

 

An obligation of confidence can arise in three ways:

1. Contractual relationship – employees may have signed agreements not to disclose an employer’s secrets

2. Personal relationships – protection of publication of kiss and tell stories originating from less formal relationships

3. Unethical behaviour – Journalists that obtain confidential information by unethical means such as trespass, listening devices or long range cameras are in breach of confidentiality. If there is no obligation of confidence then this would fall within the scope of privacy law. 

 

If a person or an organisation discovers that confidential information is going to be published in the media without their consent they can apply for a temporary injunction from the High Court to stop it. The other options that the claimant could pursue include suing the publisher for damages, seek a court order for the confidential material to be ‘delivered up’ so that all copies can be destroyed, or ask a judge to order the publisher to reveal the source of the information so that legal action can be pursued against the source for disclosing confidential information. 

 

Disobeying an injunction can result in an action for contempt of court. However, a media organisation that is being sued for an alleged breach of confidence can raise two defences. Firstly the information did not have ‘the necessary quality of confidence’ because of its nature, or because it was already in the public domain. Secondly that it was in the public interest, for example exposing wrongdoing or negligence. 

 

The journalist faces the dilemma when they hear of some newsworthy misconduct from a source who received the information confidentially. The journalist should approach the person alleged to have misbehaved to get their side of the story and check the facts. This is known as giving the criticised person the fair opportunity to respond to the allegations, and the ‘right to reply’.

 

The law of privacy developed from the action for breach of confidence, but it now a separate cause of action. The Human Rights Act 1998 came into force in 2000, which introduced a specific law of privacy, which we lacked up until the year 2000.  

 

The right to privacy is guaranteed by Article 8 of The Convention on Human Rights, which states: 

• Everyone has the right to respect for his private and family life
• 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 claimant seeking an injunction to stop the media from publishing information about their private life will need to demonstrate that they have a ‘reasonable expectation of privacy’. In regard to sexual relationships, the courts have upheld that adulterous or casual sexual affairs are matters in which one or both of the people involved have a reasonable expectation of privacy. 

 

When it comes to children, the media have to be careful, especially celebrities children who are in the public eye. The privacy law protects children from intrusive media attention.

  

Information concerning health is usually treated as being the highest confidentiality as information health about a person health is private.  

 

Journalists who use electronic equipment to spy on other people must be aware that not only are they breaching privacy law they are also committed a crime. A prime example of this in the media currently is the Leveson Inquiry where the former editor of the NoTW Rebekha Brooks is being trialled for hacking people’s private voice messages.

 

 

The Editors' Code of Practise, overseen by the Press Compaints Commission, has clauses which require newspapers, magazines and free-standing editorial websites to protect peoples privacy.

Privilege: Providing Journalists with Protection

Privilege provides us with protection to report on daily routine activities such as going to public meetings, council hearings, tribunals or court. The public interest demands that there should be complete freedom of speech without any risk of proceedings for defamation. As journalists, we are able to broadcast material which may be defamatory or untrue providing we abide by certain conditions.

There are two types of privilege: Absolute and Qualified. When journalists are covering the courts or tribunals they enjoy Absolute Privilege, providing the report is fair, accurate and contemporaneous - as soon as practicable. For instance, a court report should be published in the first issue of a newspaper following the hearing, and for broadcast it should be aired the same day or early the next day.

Privilege does not cover defamatory matters that are shouted out in court from the public gallery. If they are not defamatory it can in libel law be reported safely.

Inquests are also covered by absolute privilege, covered by the Contempt of Court Act. Inquests provide print journalists with strong stories for news in brief. The types of verdicts heard are those of natural causes, accidental death, unlawful killing or an open verdict. I attended an inquest hearing in Southampton last year, which was a good source for online stories, to view the reports click here.

Qualified privilege covers the same protection as absolute, but our reports must also be without malice (meaning without spite) and of public concern (in the public interest).

The term 'qualified' refers to the principle, that the publication is protected in certain circumstances. QP only acts as a defence if the report is fast, accurate, and contemporaneous, in public interest and without malice. We have to be careful to report on things heard outside of the proceedings of the event.

Qualified privilege applies to debates held in public, court proceedings held in public, public meetings and press conferences, council meetings, statements issued for the public by government departments, councils, police etc. and other material that is published by an authority of a government of legislature anywhere in the world.

Copyright

Imagine if we lived in a world whereby everything we created could instantly be copied, a photograph, a piece of art, a design, a graphic, or music, lyrics and sounds. Raw talent wouldn't be noticed, and there would be nothing you could call your own, no stamp of approval before it was shared, and any form of innovation would be virtually non-existent, with people passing off your work as their own.

Luckily there is a law to prevent this, and that is the Copyright, Designs and Patents Act 1988 which protects our material and intellectual property. Without the copyright law we would not be able to produce any creative content, which is particularly important in Journalism as ‘exclusives interviews’ and articles wouldn't be possible without this form of protection.

There are particular rules for journalists as to what they can ‘lift’ from other peoples articles, although we cannot word for word copy someone else’s work we can copy quotes providing we attribute the publication of where it was originally sourced from. Journalists have to respect copyright laws, and identify the risks that we would face using someone else’s work.

The exemption when it comes to using broadcast material is if it is used for the purpose of reporting on a current news event. For example the death of a famous figure, such as an actor - you would expect to see an obituary including films that they were involved in. This is possible because it is reporting on a current event under fair dealing; however we have to consider the time limits in which it can remain public. The News Access Rights agreement means that you can only show it for a certain amount of time.

Fair dealing means that content has been used for the purpose of 'reporting current events', however in keeping with the guidelines means it must be in the public interest, of fair usage and attributed to the owner. By fair usage, it means only taking a short clip from the full video as a preview. This is why the fail dealing exemption does not apply for still photographs because you are using the entire creative work, therefore you would have to look for images under creative commons without copyright.

Everything of original work is protected such as books, films, music and photographs, however the Act does not protect undeveloped ideas, slogans or catch phrases. When it comes to needing access to content that is not your own, recognise the copy right issues early on and contact the rights holder. Once you have copyright cleared then you are safe to use it, just don’t think about lifting material without referencing it.

If in doubt, always call the lawyer.

Freedom of Information Act

Journalists thrive off of information, with the desire to gain access to sources that can provide us with new information; aiding our goal of sharing a new story to shine a light on an area that may not have been exposed in the media.

The Freedom of Information Act allows you to do exactly this, any individual not just journalists are entitled to request information from a public body, subject to certain exemptions. Whereas all the laws previously discussed regarding contempt of court, defamation and libel are the reverse of this. Instead of them allowing us to access and share all the information, it draws up limits on what is legally sound to publish.

The Government wants to be seen to be legitimate, promoting transparency and accountability, offering 'the people' the chance to further their understanding of public issues and bring to light information that may affect public health and public safety; both of which are of public interest.

There are over 100,000 requests made a year, costing around £34m, with only 12% of the requests coming from Journalists. Anyone can make a request, and it doesn't have to apply to just paper files, it can include information on video, tape or electronically too.

It's easy to make a request, either through the website 'WhatDoTheyKnow?' or simply by emailing the public authority. You can email about almost anything without having to provide them with a reason as to why you want to know - and its free. This accessibility is a privilege to journalists, who can plan in advance story ideas that will give them an exclusive inside scoop to stories relating to the news agenda.
By law the public body must reply to you within 20 working days, this is around four weeks. It is important particularly if you are working on a news story to plan ahead. It's worth thinking of upcoming occasions and public holidays to help time a story for example relating to 'valentines day'.
If the authority is debating whether or not your request is within the public interest they can take 40 days to consider it, so bare this in mind when planning ahead.

As mentioned earlier, you can ask almost anything you like, but there are two exemptions where you cannot obtain information.
Absolute - this is where information is absolutely exempt from being disclosed, for instance security services or court records, they have no duty to confirm to you any information that is withheld relating to the courts or the defence of the country.
Qualified - this is where it becomes partially exempt, for instance ministerial communication and commercial confidentiality, such as if it makes a qualified body look bad, but if the information is deemed to be within 'Public Interest' then it should be disclosed.

If information is covered by Qualified exemption you should still be given it if it is on the balance of the 'public interest' and passes the public interest test. 

Public interest is where something is in the interest of the public for instance health and safety not merely interesting to the public. For example:
How many NHS nurses have criminal convictions? - This is public interest
How many NHS nurses are divorced? - This is merely of interest

Qualified exemption outweighs the public interest in cases that jeopardise the national security, cause prejudice to defence, economic interest of UK and law enforcement, expose information intended for future publication or relate to communications with the royal family.

If a request is refused you can by law ask for an internal review, raise it with an information commissioner, information tribunal or if it goes further you can take them to the High Court.

There are also laws in place to protect our information, including:
The Data Protection Act works to protect information away from public domain with respect to personal data. All the information that is held about us is confidential* and stops others obtaining the information. The only people entitled to gain access to information about yourself, is you, especially if you feel they hold the wrong information.
The Official Secrets Act  protects sensitive material and documents held relating to the defence of this country, for example the Ministry of Defence.
*Confidentially - There is a current story relating to the NHS and patients regarding the set up a a new giant database to aid medical research and monitor performance. Due to the confidentiality of patient data, records are being anonymised, but patients feel this new data-sharing scheme should be delayed.

FOI was a new labour policy introduced by Tony Blair in 2005. At the time of the introduction Blair deemed it to be a great idea, considering that journalists could gain access to the Conservatives dodgy dealings during power. However, after a period of time passed with Labour in power, the roles soon reversed and he regretted introducing the act: "You idiot. You naive, foolish, irresponsible nincompoop." These were the words of Blair himself, after the realisation hit that it was rarely used by 'the people' instead it was used mainly by journalists trying to uncover new material. Additionally he felt it was dangerous, because the government needed to discuss issues "with a reasonable level of confidentiality".

In the future, under the coalition Government a review of the FOIA may be considered to essentially limit people from making too many requests where they become too 'burdensome', particularly Journalists. They could lower the limits on costs, leading to many more requests being refused, further to this, altering other factors such as time take to release information or not in to the cost calculations.
As you can imagine, press organisations and freedom of speech campaigners have been very critical of the plans.

Publication + Defamation + Identification = Libel

The chances of walking into a newsroom - swamped with the pressure of delivering breaking news on criminal and legal proceedings - without hearing journalists debating over what is legally safe to broadcast is very slim. Discussions over what is legally sound to publish will be at the top of every news broadcasts agenda ensuring they are abiding by the law and avoiding the danger of defamation and libel.

Reflection is key for journalists, they understand that the golden rule is to seek professional legal advice if a publication is likely to cause threat of libel. If you are not aware of media laws it's unlikely that you will pick up on matters over what the media can and can't say, and sometimes its the case where they have over stepped the mark and can be sued for their damaging reports. A notable example of this was when landlord Chris Jefferies won "very substantial" settlements in libel action against eight national newspapers for articles published about him after the death of his tenant Joanna Yeates. More on the matter here.

Defamation laws try to strike a balance between the individual right to a reputation and the right to freedom of speech, but media organisations can fight defamation actions providing they have a grounded defence. 

A statement is defamatory if what you write or broadcast about someone or a company lowers their reputation. Material published is defamatory if it tends to lower them in estimation of righting thinking people, causes them to be shunned or avoided, disparages them in their business trade or profession and/or expose them to hatred ridicule or contempt. 

Billions of articles are turned around continuously all over the world, but it is the words which are potentially fatal to a news outlet; as they can carry an innuendo or 'hidden' meaning which may be clear to people with specialist knowledge. In 2012, Lord McAlphine was at the centre of a libel claim, after Newsnight broadcast a report wrongly implicating that he was involved in sexual abuse of children. BBC newsnight issued a formal apology. Although Lord McAlphine was not named in the broadcast, Sally Bercow tweeted: "Why is Lord McAlpine trending. *innocent face*." which was ruled as libellous in the High Court. We have to consider jigsaw identification, this is when the anonymity of a person is identifiable because of a combination of details published. When there are juveniles concerned we have to be even more careful that a series of characteristics cannot be pieced together to reveal their identity.

According to the new Defamation Act 2013, a statement is not defamatory unless it's publication has caused "serious harm" to the reputation of the claimant. This alteration to the act was enforced to prevent journalists from facing unfair legal threats whereby they may have fairly criticised a company or person in the past. The Ministry of Justice said the act would provide "clearer, better protection for people publicly expressing opinions". The claimant cannot sue for libel if the statement written about them is the "truth", therefore, providing journalists stick to the facts they are safe. The Act also includes other safety measures such as the right to publish content if it is a matter of "public interest", and if it is "honest opinion", based upon a known fact at the time of writing. The new Defamation Act has also tightened the test for claims from those with little connection to England and Wales being brought before the courts, this is known as "libel tourism". With journalism growing online, the new Act includes a defence for "operators of websites", who will be protected if they have proof that it was not the operator who posted the statement on the website. A single publication rule prevents repeated claims against a publisher about the same material. 

Any defences that you hold will automatically be weakened if you are showing malice. This means that you have shown signs of wanting to cause harm; you have to prove that you are disinterested in the matter you are reporting. 

Defamation via pictures is also a common danger in TV, it's not always just about what you write or say, for instance juxtaposition libel where you may have a headline reading "sex crimes up" against a picture of the local politician - which implies he is the cause of it. Video journalists have to make sure that they are not careless with their background shots when writing their voice overs. Peoples names and companies must not be identified in certain contexts for instance in fraud or child abuse cases. It's simply sloppy journalism if we don't use precise shots.  

Journalists have absolute privilege when they are reporting on court cases, this means what they are reporting on is a fair and accurate report of judicial proceedings held in public. If it was heard in court, and no reporting restrictions apply they can report it, providing it is published contemporaneously on the first available publication. However, this privilege does not apply if the proceedings are held in private, as we saw last week in Scotland with the private hearing of Rosdeep Kular charged with the murder of her 3-year-old son.

The basic requirements for the qualified privilege defence, such as police quotes or press releases is that it is fair, accurate, without malice and in the public interest. This means the public must benefit from this matter of concern and that it is without spite towards the claimant.     

You will not have a leg to stand on in court if you are sued for libel, and you have not checked the facts. If you simply haven't asked an editor to verify what you are saying, or you get carried away trying to 'sex' up a story then you are in danger. Think about putting yourself in the shoes of who you are writing about, if you are not absolutely sure you are reporting truthfully based on fact, then wait for a lawyers opinion, it'll pay in the long run. 

Ask yourselves two questions, is what I am writing potentially defamatory? and if so, do I have a defence?