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.