Lets just keep this between you and me...

Three elements in a Breach of Confidence:

1.       Must have the “necessary quality of confidence”

2.       Must be in circumstances imposing an obligation of confidence

3.       Unauthorised use of that information must cause “detriment”-they must show how they will be hurt.

Obligation of Confidence exists in:

·         Contractual relationship e.g. employee to employer

·         Membership of security services – Spycatcher Case http://news.bbc.co.uk/onthisday/hi/dates/stories/october/13/newsid_2532000/2532583.stm

·         Disclosure - in legal proceedings – protected until released at court or referred to a t a public hearing

·         Domestic Relationship – e.g. 1969 Duchess of Argyll prevented her former husband from publishing marital secrets. By 1980’s this was extended to the publication of kiss and tell stories, but details of transient affairs (e.g. with a prostitute) are unlikely to be protected

·         Third Parties e.g. Journalists, who come into possession of confidential information come under legal duty to respect the duty of confidence

·         Information gathered through unethical behaviour e.g. theft or trespass, is still under obligation of confidence

Journalists must give an individual or institution on which they publish damaging information a “right to reply”. This is an opportunity to respond to allegations before publication. This can be an issue for journalists as it gives the individual a chance to have an injunction imposed, and prevent the publication.

Three Areas of Concern:

1.       State Secrets – mainly affecting types of investigative journalism, and reporting communities with links to the armed forces – Official Secrets Act 1911

2.       Commercial Secrets – vital for solid news, investigative, and specialist reporting (e.g. health). This is common law confidentiality.

3.       Privacy – mainly for celebrity/tabloid journalism – Privacy Law and section 8 of the Human Rights Act 1998 right to “normal enjoyment of family life”

Section 8 of the Human Rights Act 1998:

·         Everyone has the right to respect for their private and family life, their home and their correspondence

·         Except:  1) In the interest of national security/ public safety/ economic well-being of society

 2) Prevention of disorder or crime

 3) Protection of health or morals

 4) Protection of the rights and freedoms of others

The wording of section 8 of the Human Rights act 1998 suggests it only gives protection for privacy against a “public authority” but this also includes the media.

The main aim of the Official Secrets Act 1911 is to prevent spying. It is an example of statutory privacy. Section 1 concerns the revelation of information which could pose a risk from an enemy of the state.

Confidentiality Law e.g. conversations with doctors or lawyers, is often just expected or implied.

Gagging Clauses: often in contracts of employment (Journalists don’t like these)

·         Employees owe employer a “duty of confidence” even if it isn’t specified in their contract

·         Extends to matters of public concern – Graham Pink Case
Graham Pink Case: He held concerns that the hospital was not being properly cleaned, and spoke to a journalist of these concerns .Cases like this have a duty to report issues to the employer or to follow the internal complaints procedures, not to report to journalists. This is because it gives the employer opportunity to respond to the issue. The Public Interest defence is limited where there are internal systems to handle complaints. Where the organisation is covered by the Official Secrets Act the defence is also not allowed.

·         It’s generally seen to be a pretty bad thing

Princess Caroline Case:
Although she is royalty she argued that she had a right to privacy under section 8 of the Human Rights Act 1998 in circumstances where she has clearly tried to be private. It is forbidden to take a picture of someone without their permission unless they are involved in a public activity, or are carrying out their job e.g. a policeman on duty.

Max Mosley Case:
News of the World published story that he was involved in and enjoyed a Nazi themed sex orgy. He was defamed, although it was defensible as true because he did not deny his behaviour with prostitutes. However he claimed his behaviour was his own private affair and reporting it was in breach of s8 of the Human Rights Act 1998. He won his claim against News of the World as Mr Justice Eady rejected the papers claim it had a Nazi theme and ordered £60,000 damages. Mosley later claimed that because he was unaware of the article beforehand the opportunity of an injunction was not available to him.
http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=42168&c=1