Law 2: Confidentiality and privacy

Confidentiality and privacy sound similar, but they are very distinct in terms of the law. The latter as a legal concept is relatively new, but the ramifications of it are wide reaching.

Confidentiality arises from the circumstances in which the information is given: privacy is more intrinsic, and a value judgment is made on the quality of information itself and whether it should be categorised as private and therefore not disclosed.

A good example of a private document would be a diary you happen to find lying on the street - to publish the contents of that would be an infringement of someone's privacy. There was no obligation of confidence between you and that person, so it's not a breach of confidence.

UNLIKE LIBEL, the burden of proof lies on the claimant to prove that they have been damaged by a breach of confidence.

What makes something confidential?

• The information has to have the necessary quality of confidence, in that it's not just some trivial piece of gossip, e.g. Cheryl Cole has herpes v.s. Cheryl Cole said she hates cats
• The information must have been imparted in circumstances that imposed an obligation of confidence i.e. a doctor's office as opposed to a public forum
• There must be an unauthorised used of the information (in most cases, publishing) to the detriment of whoever communicated it.

Governments, businesses and individuals use confidentiality law to protect things that are official or commercial secrets, or private. Injunctions are often used to stop the confidential material from being published.

Why would you want to publish confidential information in the first place? Well, it'll often be information that is very much in the public interest but something that the company/government/person will not want you to know. For example, a whistleblower could leak information to you which proves that a company is producing a harmful product and not warning anyone of the dangers.

When the story has been published and the injured party sees it, they and the courts will come after you and demand that you reveal the source of the leak, because the source has illegally broken their obligation of confidence with their employer.

N.B - you pretty much always have a contractual obligation of confidence with your employer even if it isn't outlined as such. It is an implied term in every contract that you won't act in a way detrimental to your employers interests.

At this point you, as a journalist, must point blank refuse to reveal your source. Protecting sources is a pretty serious deal - you've got to be prepared to pay hefty fines or even go to prison over it. Without sources, we're nothing, and so if it is widely known that we turn sources in as soon as it gets a bit rough, nobody would ever tell us anything ever again. When you're dealing with a legal argument over sources, you have to try and put aside what a nightmare it will be and remember that you're representing your entire profession here.

Case study

Bill Goodwin worked on a magazine called the Engineer and during his time there he used a source to reveal that a company called Tetra was in a bit of a financial pickle, which was at odds with the statements released by the company itself. This is in the public interest as, if the leaked documents were genuine, it showed Tetra to be hypocritical and deliberately misleading its stakeholders.

He tried to rely on Section 10 of the Contempt of Court Act, which gives journalists a legal right to protect their sources (unless it's necessary to disclose the source 'in the interests of justice, prevention of crime or disorder or if it's a matter of national security.')

The courts were unsympathetic and rationed that Goodwin was contrary to the interests of justice by protecting the source who had, according to Tetra, falsified these documents just to damage them. He still refused to reveal his source.

Bill was fined £5,000 and was forced to go to the European Court of Human Rights to appeal against the ruling, but seven years later he was finally out of the woods. They also ruled that the fine violated his right to freedom of expression under Article 10 of European Convention on Human Rights.

Seven years and £5,000 sounds like a lot of hassle, but because of journalists like Bill, members of the public who want to expose some wrongdoing will continue to trust us, and that's the most important thing.

The injunction problem
As mentioned briefly above, injunctions can be taken out to stop confidential information from being published. The real pain in the backside for journalists arises from, in the pursuit of making your story balanced and fair, the need to seek comment from the person or company you're writing about. Once they suss out that you may have confidential information they will immediately get an injunction out against the publication of your story.

A possible way to get around it is to base your inquiry on information that's already in the public domain, but that's not always possible.

Injunctions are granted overnight and irrespective of whether the courts were right to do so in certain cases, the injunction will typically drag on long enough so that the story they were trying to hush up is no longer news by the time it expires.

Privacy

The European Convention on Human Rights recognised a human right to a personal private life, and in 2000 it was incorporated in to English law.

Article 8 – Right to respect for private and family life
 
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 well-being 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.

Article 10 - Right to freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society

• in the interests of national security, territorial integrity or public safety
• for the prevention of disorder or crime
• for the protection of health or morals
• for the protection of the reputation or rights of others
• for preventing the disclosure of information received in confidence, or
• for maintaining the authority and impartiality of the judiciary.

Article 10 and Article 8 are in constant opposition with each other. Article 8 is what people will use against you and Article 10 is your defence.

The Princess Caroline of Monaco case in 2004 was a landmark ruling in favour of Article 8 and from then on photographers and journalists had to respect a right to privacy in a public places. She was being photographed in her daily life and not performing some public duty.

However - in 2012, Princess Caroline lost her latest press privacy fight. The ECHR ruled that that the contested photo of her and her husband walking along in a ski resort was in a public place, and that the lives of 'well-known figures' are of legitimate interest to the media.

The ruling tips the balance back from Article 8 to Article 10, and could present some very interesting common law to protect journalists for years to come.

Case study

The News of the World (RIP) published a story about Max Mosley taking part in a Nazi-themed sadomasochistic orgy with five ladies and put the secretly filmed footage (...ugh) on its website. Their source was one of those women who had taken part in the orgy.

Mosley said there was no Nazi theme and that the activities were all consensual and just a bit of a laugh, really. No harm done.

The judge ruled that the woman informant was in breach of her transitory duty of confidence that she owed to Max. He could not find any evidence of the Nazi allegations which he said would have been in the public interest if true, but that as it stood there was no public interest defence to justify the filming or the intrusion. The material was private and there was no good reason to publish it.

Mosley announced in 2008 that he would challenge the UK's privacy laws in the ECHR to make it compulsory for newspapers to notify someone before publishing private information about them. He said that no-one from the newspaper had sought comment from him and he hadn't had a chance to get an injunction.