Breach of confidence
It is the principle that a person who has obtained information in confidence should
not take unfair advantage of it. It affects journalists because the main way of preventing these breaches are in the form of interim
injunctions which prevent the media from publishing any confidential information. It is a rapidly expanding area of the law which is mainly linked to privacy, and is perhaps being spurred along by the culture of celebrity and the subsequent court cases that have resulted from press and photographs they didn't like.
The Douglas case is the most often cited case concerning confidence/privacy issues.
Elements of a breach of confidence -
Mr Justice Megarry in 1968 said there are three elements in a breach of confidence:
- the information must have 'the necessary quality of confidence'
- the information must have been imparted in circumstances imposing an obligation of confidence (e.g. a doctor's office)
- there must be an unauthorised use of that information to the detriment of the party communicating it
Quality, circumstance, detriment.
The quality of confidence -
Information is not confidential if it is of trivial significance, or deemed to already be in the public domain.
Obligation of confidence -
Contractual relationship: contract between a company and an employee that they will not reveal their employer's secrets.
Gagging clauses
Domestic relationships -
In 1967 the Duchess of Argyll prevented the People newspaper (as well as her former husband) from publishing marital secrets.
In the 1980s the courts were willing to extend the protection given there to less formal relationships, to prevent kiss-and-tell stories.
Information about transient affairs i.e. those with prostitutes is far less likely to receive this protection.
Third parties -
A journalist who comes across information that they realise was imparted in confidence may have a legal duty to respect the confidence. To go ahead and publish information that a court could prove the journalist knew was private would cause them to commit a breach.
Unethical behaviour -
There is an obligation of confidence on those who obtain confidential information by means such as trespass, theft, bugs or long-range cameras. This is presumably to protect celebrities from the paparazzi. It also applies to 'camera in a bag' investigations on an organisation (which must be authorised by the editor and deemed as in the public interest)
English law recognised no right to privacy until 2000. Before then, people who believed their privacy was going to be infringed used breach of confidence law to prevent any further intrusion.
This was difficult as there was 'the essentially different nature of the two kinds of right', referring to privacy and confidence. The Law Commission's report said:
'An obligation of confidence, by definition, arises, first, from the circumstances in which the information is given. By contrast, a right of privacy in respect of information would arise from the nature of the information itself; it would be based on the principle that certain kinds of information are categorised as private and for that reason alone ought not to be disclosed. In may case where privacy is infringed this is not the result of a breach of confidence'
So confidence is circumstantial, privacy is a concept which is more innate. If you were to pick up a diary dropped by somebody in the street, without any context you would still realise that it is a private document and hopefully treat it as such.
The European Convention on Human Rights was incorporated into English law in 2000, which contained the idea that everybody has the right to privacy. It solidified breach of privacy being an actionable offence.
In 2001, judge Dame Elizabeth Butler-Sloss developed the law of confidence when she imposed an injunction banning the media from releasing details about Jamie Bulger's killers, who were to be given new identities on release. It was argued that their human right to privacy, to life, and to freedom from torture far outweighed those of freedom of speech on behalf of anyone wanting to expose them.
How confidentially can make journalism difficult
A journalist, on obtaining interesting information about a person's misconduct, will seek to get this party's side of the story in the interests of
fair play and some
legal protection from libel.
If the source of the information received it in confidence, however, approaching the person to ask for their take on things could just result in them seeking an injunction, effectively killing the story before it even has a chance to develop.
To get around this, a journalist could use the source as a lead and seek out more information from a
non-confidential route, then question the subject of investigation based on this. If the information isn't confidential, then there can't be an injunction.
It is always worth ringing up the party concerned; the 'facts' gleaned from the source could always, after all, not be true. In
1977 the Daily Mail had to pay substantial libel damages to BL (British Leyland) after publishing a story which claimed BL were conspiring to defraud foreign governments - the letter which led their story had turned out to be a forgery.
Injunctions, and the overall effect confidentiality has on the media
A person who has learnt that the media is planning to publish a story on them with information they have obtained from confidential source can try to get a temporary injunction banning publication of the offending material.
Section 12 in the
Human Rights Act 1998 contains rules which intend to provide some protection against injunctions in matters involving freedom of expression.
An application for a injunction can be made
without notice - this is where the paper are given no indication that the offending material has an injunction made against it, and so
subsequent publication could be contempt of court.
Section 12 is supposed to prevent this from happening - saying that if a journalist is not present when the application is made, then the court must not grant the injunction unless the person seeking it has taken all practicable steps to
notify the publisher or if there are 'compelling' reasons why the journalists should not be notified. No examples of compelling reasons are given in MacNae's which suggests those reasons are probably highly subjective.
Injunctions are usually carried out at speed and it may not always be possible to get a hold of the journalists. Injunctions can be granted overnight - in the
Douglas case, a temporary injunction against
Hello! was granted. The court was told
OK! tried to contact
Hello!'s editor at the time (the middle of the night) but unsurprisingly the phone was answered by a security guard who was unable to help.
Effect on local papers
In
1982, the
Watford Observer planned to publish a story based on documents that showed that the publisher
Robert Mawell's printing operation,
Sun Printers was going under and that he was going to have to lay people off.
The day before press day, a reporter telephoned the company seeking comments.
At midday the following day (press day) Maxwell phoned the paper and pleaded with them to not release any details of the story at this stage. The editor declined, and so his company's lawyers applied for an injunction soon after and were granted one within the next few hours. They phoned the paper at 4.30 to tell them about the injunction, a time when the editorial and typesetting work for the paper would have been completed. Fortunately the paper had prepared alternative material for use in its pages after Maxwell had initially phoned the office.
Bill Goodwin case
In
1989 an engineering company,
Tetra Ltd, obtained injunctions against
The Engineer and its reporter,
Bill Goodwin. The company had realised that a draft copy of plans for a large bank loan had disappeared. The day after this happened an unidentified source phoned Mr Goodwin and gave him information about the company, which included the amount of the projected loan and the company's forecast results.
Goodwin then phoned the company to double check these figures, which caused them to take out a
without notice injunction preventing the magazine from publishing anything concerning the company's financial plans on the document. They later obtained an order requiring him to hand over the document which would disclose the source of information. Goodwin refused to do this and so was
fined £5,000, but protected his source. In 1996 the European Court of human Rights held that the fine/court order had violated Goodwin's right to freedom of expression.
Injunctions
In
1987, the Court of Appeal held that when an
injunction is in force preventing a newspaper from publishing confidential information,
other newspapers in England and Wales that know of the injunction
can be guilty of contempt of court if they publish that information, even if they are not personally named in the injunction.
In
1989 two papers were fined £50,00 each for publishing extracts from
Spycatcher because at the time of publication they knew that interim injunctions were in force against the
Observer and the
Guardian preventing them from publishing this material.
Injunctions are sometimes worded in such a way that journalists are even prevented from mentioning the existence of the proceedings.
An injunction obtained in an English court does not prevent publication in another country. It does not, therefore, prevent publication in Scotland, though Scottish judges may be asked to impose their own injunction, known as an
interdict.
Cost of injunctions
A person seeking an injunction must give a
cross-undertaking in damages - an undertaking that he will pay any damages to the defendant if it turns out that the interim injunction should not have been granted.
The defendant may also get costs; In
1994, Camelot tried to get an injunction preventing papers from reporting the winners of the first jackpot in the National lottery - this ultimately failed and
they were required to pay £5,000 costs to the paper.
Challenging an injunction can be very expensive, regardless of the outcome. The
News of the World claimed in 1987 that it had spent £200,000 in an unsuccessful attempt to defeat an injunction granted to a health authority preventing the paper using information from personal medical records supplied by one or more of the authority's employees. The records showed that two practising doctors in employment were HIV+.
Fines
Disobeying an injunction can result in an action for contempt of court.
The News of the World was fined £10,000 for publishing a story headlined 'Scandal of Docs with AIDS' after the injunction was granted.
Order to reveal source
A court can order a journalist to reveal the source of their confidential information, e.g. Goodwin case
Damages
In the
Douglas case the two film stars were awarded £14,600 for 'distress' and incidental costs.
Supermodel
Naomi Campbell was awarded £2,500 damages for distress and hurt feelings in
2002 against Mirror Group Newspapers when she sued for
breach of confidence and infringement of the Data Protection Act 1998. The
Daily Mirror had published a story about her receiving therapy from Narcotics Anonymous for drug addiction. A further £1,000 was awarded for an additional article published by the paper.
Disclosure in the public interest
The Human Rights Act 1998, in Section 12, says that when a court is considering imposing an injunction in a matter
affecting freedom of expression, and where
journalistic material is involved, it must have particular regard to the extent to which it is, or would be, in the
public interest to be published.
Judge Lord Denning said that when considering applications for an injunction on grounds of confidentiality, courts had to hold the balance between two competing interests. On the one hand there was the public interest in preserving confidence. On the other was the public interest in making known to people matters of public concern.
In the case
Lion Laboratories v Evans [1985], the Court of Appeal held that the publication of confidential information revealing that a type of
breathalyser machine used by the police did not work, was in the public interest. As was the broadcast of
undercover filming by an employee in breach of confidence which showed
misconduct at a funeral home (
Service Corp International plc v Channel Four [1999])
In the
2002 Naomi Campbell case,
Mirror Group Newspapers argued that the Narcotics Anonymous story was published in the public interest because the model had previously gone out of her way to tell the media that, in contrast to other models, she did not take drugs (
hypocrisy). This was obviously untrue and disclosure was necessary to
correct a false public image. In
2004 the House of Lords agreed that it
was in the public interest to report that Naomi was receiving treatment for drug addiction,
but to report the place of treatment, her reaction to it, and to
surreptitiously obtain photographs of her emerging from the place of treatment was crossing the line and
was no longer in the realm of public interest.
Section 12 of the Human Rights Act says that a court considering a matter affecting
freedom of information must have particular regard to
'any relevant privacy code.' In the
Douglas case the relevant privacy code was that of the
Press Complaints Commission. In this code, it is clear that there may be certain exceptions to the rules if the information can be demonstrated to be in the public interest.
This is said to include:
• detecting or exposing crime or a serious misdemeanour
• protecting public health and safety
• preventing the public from being misled by some statement or action of an individual or organisation.
The
editor must be able to clearly demonstrate how the public interest is served by publishing private information.
People in the public eye
In
2000, a judge
refused an injunction sought by
Lord Levy against Times Newspapers. The story was about his tax affairs, and was clearly obtained in breach of confidence. The judge said that Lord Levy was a prominent supporter of the Labour Party, which had a manifesto commitment to
closing tax loopholes, and his own
tax affairs would shed light on the integrity of that position, which was in the public interest.
In the Naomi Campbell case against the
Daily Mirror, Lord Phillips, Master of the Rolls, said the Court of Appeal did not believe that just because an individual had achieved fame that their private life could be laid bare by the media:
"We do not see why it should necessarily be in the public interest that an individual who has been adopted as a role model, without seeking this distinction, should be demonstrated to have feet of clay."
But he continued:
"Where a public figure chooses to make untrue pronouncements about his, or her, private life, the press will normally be entitled to put the record straight."
Development of the law
Upon the introduction of the legally recognised right to privacy on the 2nd October 2000, journalists became concerned at the potential effect this right could have on their freedom to publish true information concerning the public interest.
Section 12 of the Human Rights Act thankfully requires courts, when considering an injunction, to have
'particular regard' to the importance of freedom of expression, guaranteed by Article 10 of the Convention.
The
Douglas case is often cited as a demonstration of the persistent confusion surrounding privacy law. In
December 2000 the Court of Appeal lifted the injunction that prevented
Hello! from publishing its pictures of the wedding of the two film stars but the court did not have to decide whether or not such publication was unlawful. In
2003 the judge who was given that task declined to hold that there was an existing law of privacy under which the stars and
OK! could recover damages from
Hello!. He said that there were conflicting views in the authorities as to whether such a law existed.
He decided that the stars had won the case not under privacy law, but on the grounds that the wedding was protected under the law of
commercial confidence as a valuable trade asset. In
2005 the Court of Appeal disagreed with this and held that the stars confidence had been breached by
Hello! and that they (meaning the stars) could sue the magazine but
OK! could not.
Another important development in privacy law was the
Princess Caroline case, in which the European Court of Human Rights held in 2004 that respect for her private life was breached by photographs of scenes from her daily life, i.e. shopping or on holiday, in public places (
von Hannover v Germany)
In 2008, Max Mosley sued the
News of the World over stories, photos and video footage of him taking part in kinky, not safe for work kind of stuff. This case did not establish new principles of privacy - it was the level of damages awarded that was remarkable and it put privacy on a par with other costly legal actions such as libel.
Article 8 of the Convention
The right to privacy is guaranteed by Article 8 of the Convention on Human Rights, which says:
1. Everyone has the right to
respect for his private and family life, his home and his correspondence.
2. There shall be
no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society
- in the interests of national security, public safety or the economic wellbeing of the country,
- for the prevention of disorder or crime,
- for the protection of health or morals, or
- for the protection of the rights and freedoms of others.
In this case, a 'public authority' includes the media.
Laws providing protection to privacy
Breach of confidence
The law of breach of confidence is founded on the principle that a person who has acquired information in confidence should not take unfair advantage of it. Originally the obligation was understood to arise only where the parties had a recognised relationship (e.g. doctor/patient) but judges have modified the law to infer such a relationship where no obvious relationship exists.
In the
Douglas case in 2000 Lord Justice Sedley said that there is a distinction to be made between the law protecting those whose
trust has been broken, and the protection of people who have experienced
unwanted intrusions into their personal lives. He said that it was good that the law no longer had to construct an artificial breach of trust to protect an individuals privacy now that privacy is a recognised legal principle.
Privacy was strengthened even more by the ruling of
Dame Elizabeth Butler-Sloss, who granted an injunction preventing anyone from publishing the
new identities of Jamie Bulger's killers,
citing their rights to life, privacy and freedom from torture.
'Kiss and tell' stories are problematic for judges, as they must carefully consider whether any of the information released had the
'necessary quality of confidence.'
In a new approach to the law of confidence, the question is whether Article 8 (right to privacy) is 'engaged', which depends on whether the information was 'private'. All of this hangs on whether the claimant had a
'reasonable expectation of privacy.'
In the following years after the incorporation of the Human Rights Act into British law, courts took on the view that
not all sexual conduct could strictly be treated as having the quality of confidence, or any legal protection at all.
In
2002, a judge refused to grant an injunction to
Jamie Theakston banning the
Sunday People from publishing an article about his activities in a brothel. The judge said that a 'fleeting' sexual relationship in a brothel was not confidential (
Jamie Theakston v MGN Ltd)
In the same year an injunction was lifted by the Court of Appeal which had banned the publication of the extra-marital affairs of a footballer,
Garry Flitcroft (
A v B (A Company) The judge who had granted the injunction explained that the law gave protection of confidentiality to sexual relations inside of marriage, and ruled that in a modern context the position should be extended to relations outside of marriage. The Court of Appeal, when lifting the injunction, argued that there is a definite distinction to be made between the confidentiality attached to what is supposed to be a permanent relationship, and transient affairs.
The Max Mosley case
The
News of the World printed the story of
Max Mosley being involved in a sado-masochistic orgy with five women, claiming that it had a Nazi theme. It also put secretly filmed footage on its website.The informant was one of the women who had taken part in the activities.
Mr Mosley claimed that the activities were consensual, harmless, and there were no Nazi overtones.
Mr Justice Eady held that the woman informant owed a duty of confidence, as in previous cases where the relationship was transitory. Eady held that if there had
indeed been Nazi overtones then there would have been a public interest in exposing Mosley's activities. However, because the behaviour wasn't there then the judge said he could find
no public interest to justify the intrusion, filming, or publication.
The judge ruled in Mosley's favour but refused to award exemplary damages.
Can information be confidential if its in the public domain?
In
2005 a judge granted an application restraining a newspaper from publishing the addresses of buildings acquired for housing vulnerable adolescents, although the addresses would be known to neighbours and others who lived nearby and maybe also from the Land Registry.
Mr Justice Tugendhat said:
"There will be cases where personal information about a person (usually a celebrity) has been so
widely published that a restraint upon repetition will serve no purpose, and
an injunction will be refused on that account...
I conclude that the information as to the
addresses which is sought to be restrained is
not in the public domain to the extent, or in the sense,
that republication could have no significant effect, or that the information is not eligible for protection at all."
Obligation of confidence
Where the
relationship is a contractual one the courts will hold the confidant to a
very high standard of confidence. Naomi Campbell won a summary judgement against her former P.A, who had given information to the
News of the World for their story 'Fiery model attacks aide over secret love scenes with heart throb Joseph Fiennes'
Ex-employees of celebrities, such as drivers and nannies,
are not free to speak about the private life of their former boss when the employment ends. The Beckhams obtained an injunction against their former driver and their former nanny to
uphold duties of confidence.
The Data Protection Act
The Naomi Campbell case alerted the media to the implications for the law of privacy of the
Data Protection Act 1998. She sued the Daily Mirror for both breach of confidence and infringement of the DPA.
A
journalist collecting personal information can lay themselves open to a
claim for compensation if the person concerned
suffers damage as a result of the unauthorised disclosure of that information.
The
advantages for a claimant suing under the DPA rather than breach of confidence are:
- There is no general public domain defence
- When published, there is no blanket public interest protection for media
- The requirements of the first data protection principle are very strong, and in most privacy cases are unlikely to be satisfied
- There is an entitlement to compensation for distress even if no damage can be proven. (much like libel)
The Regulation of Investigatory Powers Act 2000
The
RIPA prohibits intention and unlawful interception of communications by post or phone or other telecomunnication systems. They say that the sender or recipient of an intercepted message can sue, even if the person having the right to control the use of a private system gives permission, if such interception is 'without lawful authority.'
The Act provides a means for punishing illegal hacking into mobile phones. Doing so can fetch the perpetrator two years in jail, a fine or both.
In
2006 Clive Goodman, editor of
News of the World, pleaded guilty with another man on charge of conspiring to intercept mobile phone voicemail messages under the Criminal Law Act 1977, which covers conspiracy. The case came to light in
2005 after a series of stories were published about
Prince William that only a few people could have possibly known about, such as a knee injury. It became known that
News of the World were 'intercepting' his aides' voicemail messages.
Journalists will frequently record their own telephone calls. Under the 2000 Act, interception occurs in the course of transmission, so
recording telephone conversations by a device at either end of the communication
is not interception and is lawful. To not declare that they are a journalist to the person they are speaking to, however, can only be defended if the information obtained meets the public interest and there is no other way to get the information.
In 2011, it came to light that News of the World were targeting not only Royals, politicians and celebrities, but the voicemail of murder victims (most notably that of Millie Dowler), their families or relatives of solidiers killed in action. This rephrensible action caused a media frenzy and News of the World has since ceased production.
The wider ranging affect that these events will have on media law surrounding the issue is currently unknown.
Trespass
Trespass appears to impose large restrictions on a journalists' conduct.
Trespass to land
A wrongful interference with the possession of 'land', which includes buildings such as houses.
Wrongful interference means going there without consent. It is a tort (
not a criminal offence), and the occupant can sue for damages or get an injunction to stop it from happening. In the
Kaye v Robertson case, a journalist from the
Sunday Sport intruded into a hospital room where Kaye was lying semi-concious; the reporter interviewed and photographed him. Kaye could not sue for trespass because the hospital ward did not belong to him. Therefore,
a journalist cannot be sued for trespass for watching or photographing a person on their own land, provided that the journalist did not enter the land.
Entry by fraud (i.e. by pretending to be a doctor) and unauthorised searching of the house is also punishable.
Damages paid are usually not substantial, unless there is
evidence that they have forced entry for a story. They are then liable to pay exemplary/punitive damages.
Trespass to goods
If a journalist visiting a contact picks up a letter addressed to their contact while they are out of the room, the journalist is committing a trespass to the goods and can be held liable. The journalist cannot be sued for trespass for reading the letter while it is lying on the desk. But if he takes the letter away and intends to permanently deprive the owner of it, it could bring about the more serious tort of
conversion or even the criminal offence of
theft.
