Breach of confidence - what the court decide
The court will decide:
- Whether the material has the necessary ‘quality of confidence’
- Whether the information was originally communicated in circumstances imposing an ‘obligation of confidence’
- If there has been unauthorised use of information that is a detriment of the party who originally communicated it
Detriment includes financial loss, loss of business, loss of reputation
Breach of confidence
Breach of Confidence is a civil law (tort/wrong)
Remedies for confidentiality 5
- An injunction (court order banning publication) - a breach could be a fine or jail
- Court can order organisation to ‘deliver up’ the confidential information
- Court may order journalists to disclose the source of the information
- Damages - media to pay the owner of confidential information for loss
- Media may be ordered to state account of profits
Case Law Court of Appeal
Sun Printers v Westminster Press (Watford Observer) the Court of Appeal ruled that plans to make workers redundant had already been circulated widely
Article 10 ECHR
journalists should not be forced to reveal their sources unless in interests of justice, interests of national security or prevention of disorder and crime
S10 Contempt of Court Act 1981
‘Shield Law’
Shield Law
No journalist should be forced to reveal a source unless it is in the interests of justice, national security, prevention of disorder or crime
Case Law - revealing sources
Bill Goodwin v UK - Bill Goodwin was prosecuted for Contempt of Court for failing to reveal a source for a story. But he took the case to the European Court of Human Rights citing his right to freedom of speech (to impart and receive information) under Article 10 and WON!
Clause 14 of the Editor’s Code (sources) says
Journalists have a moral obligation to protect confidential sources of information
Clause 7.7 of the Ofcom Code (sources) says
Guarantees given to contributors for example relating to the content of a programme, confidentiality or anonymity should normally be honoured
Privacy
Comes under civil law - A tort or misuse of private information
Article 8 ECHR
Everyone has a right to respect for his private and family life, his home and his correspondence
How can privacy be breached 3
- By an intrusive act of gathering of private information
- By publication without their consent
- It can be breached ina public place if the person is upset, in grief, shock, distressed, mentally ill, etc
Remedies for Breach of Privacy
- An injunction can be imposed either to prevent a breach or prevent its repetition
- Damages
Where is there an expectation of privacy
- intimate personal relationships, including sexual relationships and adulterous ones, (Max Mosley case) and private correspondence and private communications
- The location of the event(s) may determine if there is a ‘reasonable expectation’ of privacy
How can media minimise privacy lawsuits
- not publishing some detail e.g. obscure or pixelate the face of a vulnerable person to hide his/her identity
- not show face of a person in distress or pain after an accident in a public place
- only use brief footage
What the judge will consider 8
- The extent to which publication has contributed or will contribute to ‘a debate of general interest to society
- how well-known the claimant is – e.g. does he/she ‘play a role in public life’, a definition which goes beyond a political role
- the prior conduct of the claimant – for example, has he/she compromised his/her own privacy by seeking publicity previously
- does the information/image show he/she is hypocritical/has projected a false public image previously?
- Was publication harmful for the claimant and his/her family?
- Was it proportionate for any, some or all the information to be published?
- Is the information/image already in the public domain?
- Even if it is widely available on the internet a judge could grant an injunction to prevent further publication of the same material
Children and privacy
Children have ‘a reasonable expectation of privacy’ irrespective of location, and so their privacy can be breached if they are filmed or photographed without parental consent, even in a public place
Naming people under investigation - case law
Cliff Richard v BBC
Naming people under investigation
College of Policing guidelines say police should not identify a person who is under investigation/arrest and who has not been charged.
