Law lesson 2 Confidentiality/Privacy

Our second law lecture was about confidentiality; the official secrets act and test of confidentiality, and privacy; including the disputed territory between article 8; the right to a private family life without harassment  and article 10; freedom of speech and expression.

Confidentiality regards common law secrets. People have a right to keep a secret, and if they choose to share that secret and that secret is not kept my that person then they are breaching confidentiality. This person may be a doctor for example and is breaking the law by breaching this confidentiality with you. This person may then be subject to civil action or compensation. Protecting a source is an example of upholding confidentiality as in the Bill Goodwin case; the European court said that protection of sources was key to press freedom and article 10. Sources have to be protected to the end even if it means going to jail for not giving this information to the police when asked. This is so that 'whistle blowers' or anyone who comes to the press with information feels trust and therefore does not feel as though they cant talk to the press when they have some important information.

A breach of confidence is defined as the following when information is passed on which;

1. Has the necessary quality of confidence, (e.g is important and is not already known)

AND

2. Was provided in 'circumstances imposing an obligation' (e.g when a reasonable person would think it would be kept a secret)

AND

3. There was no permission to pass on the information.

AND 

4. Detriment is likely to be caused to the person who gave the information.

All of the above points make the information confidential.

Regarding confidentiality; the Official secrets act 1989 eliminated the defense of public interest when reporting on secret, sensitive or leaked information that is considered to be a threat to national security. This information includes reporting on the military, navy or atomic plants or inspecting or reporting on private property belonging to the MOD. Reporting material of this nature is punishable of up to 14 years in prison, while editors risk jail time and their career. Editors may get a DA (Defense advisory) from the Ministry of defense telling editors not to publish leaked or sensitive material that could be useful to an enemy.

 

Injunctions are a way of delaying information being published that could be harmful to the person that the information is about, for example in the Max Mosley case where information about his private life of a Nazi themed orgy was defamation of him as a person and therefore an injunction could have been requested to the courts to stop the information being published. Injunctions are easy to get because they only delay publication and the details of the case are then discussed in court. If one media injunction is prevented from publishing information through an injunction then all media organisations are, e.g in the Ryan Giggs case.

Super injunction prevent the publication of the fact that someone has requested an injunction. These however, as well as injunctions, can be broken by MP's in parliament using privilege  which then means that journalists can use qualified privilege to report about the injunction or super injunction.      

Images can be published if they are safely obtained; if there is consent; either explicit or implicit or if there is a public interest. Public interest is defined as the following;

1.Detecting or exposing crime or serious impropriety.

2. Protecting public health and safety

3. Preventing the public from being misled by an action or statement of an individual or organisation.

Privacy mainly affects celebrities because of celebrity journalism, they are interesting and the people that readers want to know about, therefore aspects of their life and then in the media's interest because this is what sells papers. But it should not be assumed that people can be filmed because the are in a public place.

 

The battle between articles 8 and 10 is a running one that can change from case to case; Princess Caroline won her case in 2004 for an invasion of privacy as she had a clear expectation of privacy in the back of a restaurant off duty. There was no public interest, privacy was expected and she therefore won her case under article 8.

However in 2012, Princess Caroline and her husband were walking in a public place and were caught on camera but there case was not won under article 10 because the judge said there privacy had not been infringed. 

Long range cameras are effectively banned and have been seen in cases such as the Duchess of York caught topless in 1993 and then Duchess of Cambridge caught topless in 2012.