BREACH OF CONFIDENCE AND SECRECY

These are rough lecture notes and do not constitute legal advice. The lecture must be taken in conjunction with the directed reading and your own research and verification.

Notes by Chris Horrie, UPDATED OCTOBER 2009

There are three areas of concern here:

• state secrets (mainly affecting certain types investigative journalism, and reporting communities  with links to the armed forces) - Official Secrets Act

• commercial secrets (vital for B2B,  and solid news reporting, and investigsative reporting, and specialist reporting - eg health) - Common Law Confidentiality

• privacy (mainly a matter for tabloid/ celeb journalism) - ‘Privacy’ law, and Human Rights Act, section 8 ‘normal enjoyment of family life’.

Official (statutory) secrets

Certain types of public information such details of military or intelligence operations are “official secrets”

The Official Secrets Act 1911 (and various amendments) contains schedules of secret information. Revealing any of this information can lead to criminal prosecution.

The main danger here is inadvertent braking of the OSA by for example taking wallpaper shots (again as with Defamation, note the danger) of military bases and so on, which are covered by the official secrets act. Normally at a military base (or for example a nuclear power station) there will be a notice saying

“This is a prohibited place under the official secrets act. Persons entering here may be arrested and prosecuted”. If this is the case you can not take photos, or make a drawing or anything of that sort without permission”.

Another inadvertent problem is in newspaper/radio in area near military bases (eg Salisbury area) - a local news story saying “wives were delighted because soldiers returned safely” could be OSA breach because gives away directly/indirectly the disposition of troops. Would be best to check with press office at the military base or with the MOD.

[D-notice system - voluntary self-regulation. Voluntary self-restraint on part of national editors went sent a memo by the Ministry of Defence.]

Official secret act here:

http://www.opsi.gov.uk/acts/acts1989/Ukpga_19890006_en_1.htm

The Zircon case
http://www.fas.org/irp/eprint/alpha/zircon.htm

Common Law secrets / confidentiality

In common law people have a right to keep secrets, so long as this is not against the public interest, and a right to pass on these secrets to others with the expectation that they will not pass them on to others.

If somebody who is not entitled to pass on our secrets (eg our doctor or lawyer, very close family members or perhaps an employee or servant) does so, that person has committed “breach of confidence” which is both a crime and may be subject to a civil action for compensation.

Obviously journalists, because we want new or surprising or commercially valuable information, often want to find out secret information and print or broadcast it.

If get somebody to reveal secret information to us as journalists we may be involved in the crime of THIRD PARTY breach of confidence, which is a crime. Importantly, if a somebody can persuade a judge that a  THIRD party breach of confidence is about to take place because of your article/broadcast, that person can obtain an injunction to prevent the story becing published/broadcast. This is in the past has proved to be a very effective ‘gag’ on the press - even the threat of an injunction will make many journalists and editors think twice.

BREACH OF CONFIDENCE DEFINED

“Confidentiality” partly depends on the type of secret information at stake, and partly on the expectation of the person imparting the information that it will be kept secret.

A person is in breach of confidence if they pass on information which:

1. has “the necessary quality of confidence” (eg – is important and is not already known) - “not just tittle-tattle”, or for example somebody’s date of birth.

AND (not ‘or’ as in Defamation)

2. was provided in “circumstances imposing an obligation” (eg - when a reasonable person would think it would be kept secret – such as in a one on one consultation with your boss, or with a professional such as a doctor, and not just said at a party or discussed in a group or at a press conference).

AND (not or)
           
            C .  There was no permission to pass on the information

AND (not or)

            D  “detriment” is likely to be caused to the person who gave in the information (this is again different ot Defamation, where the complainant does not have to show they are likely to suffer, just that the Defamation may “tend” to make people think less of them. In confidentiality they have to show how they will be hurt – eg by losing out on a contract because information was given to a rival helping them to fix a more competitive price).

So remember ordinary secret information (both personal/ private and commercial) must have:

1. quality of confidence  AND…
2. circumstances AND…
3. no permission to reveal AND…
4. cause actual detriment.

If any of the above is missing, then the information is NOT confidential, and it can be revealed without breach.

SO:

If a boss tells an employee [circumstances implying duty of confidence] the maximum price which he is prepared to pay a supplier [quality of confidence] and then tells him to keep that secret [no permission] and if the employee then tells the supplier that price and it causes the company to pay more than they otherwise would have to pay [detriment].

Then that would be classic breach of “commercial confidentiality”.

But if the employer shouts the information at a party, then revealing it would not be breach. This is one reason why bosses and important people have offices.

Likewise if the information imparted was trivial - for example plans for decorating the office Xmas tree - then the employee could not be done for breach of confidence, even if the employer made him “swear” to keep it secret. The information does not have the “necessary quality of confidence”.

The only time that an employee could reveal confidential information without an action for breach (and a journalist report it with an action for Third Party breach) would be where it was overwhelmingly in the public interest. The classic case would where the confidential information is a conspiracy to commit crime or fraud, or a confession to crime, fraud or seriously anti-social behaviour.

Once again our old friend The Public Interest (and its three point definition given in the PCC code of conduct).

There’s another good, simple definition here, from the UK Health and Safety Executive (they are concerned with allowing employees to report to the authorities health and safety dangers at work, without being sacked for breach of confidence).

HSE on confidentiality:
http://www.hse.gov.uk/enforce/enforcementguide/court/reporting/breach.htm

“GAGGING CLAUSES” in contracts of employment.

If a person is employed by another for wages (or even as a volunteer) they owe the employer a common law “duty of confidence” - even if this is not specified in the contract of employment, and even if there is not a contract of employment as such.

An employer has to “confidence” that they can tell secrets to an employee (as in the example above). Otherwise business would be impossible.

This secrecy could extend to matters of public concern - for example the fact (Graham Pink case) that a hospital ward was not being properly cleaned. In these cases there is a duty to report this to employer, or to use internal ‘grievance’ procedures. The idea is that thing will go wrong from time to time in any business and that the management of any business (or hospital for example) will put these problems right quickly and quietly if appropriate.

Thus the public interest defence is limited when there are mechanisms for dealing with complaints internally. Where organisations are covered by the Official Secrets Act, the public interest defence is not allowed.

[Generally the catch-all idea of ‘national security’ will over-ride all ‘right to publish’ conventions, including section 10 of the Human Rights Act, rights under the freedom of information act, and common law rights in confidentiality law. IE/ nothing, in law, can ever justify revealing state secrets/ military secrets]

On top of this fairly severe common law duty of confidence, many companies now use draconian contracts of employment which included specific undertaking not to reveal anything at all about a company (including ‘trivia’ which might otherwise not be restricted under common law).

So if somebody has a ‘gagging clause’ they are taking a huge risk in speaking to a journalist about their company either without permission. This is why many employees will refer you to the press office of their company or organisation. [And why you need to speak to as senior person as possible]

It might be the case that a the public interest defence would overcome a ‘gagging’ clause in contract. But that would require legal action over a long time. The problem is that an employee with a ‘gagging clause’ can be instantly sacked without compensation for breach of contract of employment (very clear cut, and entirely on the side of the employer) rather than breach of confidence (more difficult to establish, and the law balancing the interests of the employer, employee and society).

Gagging clauses are therefore bad. But if people start telling you confidential information (eg Graham Pink case) you must warn them in the strongest possible terms that while you will do whatever you can to protect them as a source (NUJ code of conduct/ Bill Goodwin case) if thjey are identified, as they often will be by the nature of their information, then they face very severe penalties and there will be nothing you can do to help them.

Graham Pink was a charge nurse working in care of the elderly wards on night duty in Stepping Hill Hospital, Stockport. After two years of unsuccessfully raising concerns with his managers he decided to go public. He reported how understaffing caused inadequate care, and was dismissed in Sept. 1991 for 'breaching confidentiality'. He took the hospital to an industrial tribunal and won compensation.

A group campaigning for stronger protection for journalists and “whistlers” who are “gagged” by confidentiality clauses in employment contracts (particularly in the public sector) can be found here – it is Public Concern at Work – a freedom of information/ civil liberties pressure group.

Public Concern at Work

http://www.pcaw.co.uk/

(note their advice on whistleblowers talking to lawyers and internal grievance people before contacting journalists).

PCAW on “whistleblowing” in the NHS:

http://www.pcaw.co.uk/news/press_23.html

PROFESSIONAL CONFIDENTIALITY

Anything we tell a doctor we expect to remain secret between ourselves and the doctor, unless we give consent that the information can be shared because it is trivial, or because it will be useful for medical research or education. Even so doctors have to obtain your permission, at least oral assurance by the patient with witnesses present, before they can discuss anything.

If a person reveals secret (confidential) information about another person or company or organisation without permission, they may be guilty of the crime of “breach of confidence”.

If you as a journalist then print or broadcast the information, then this is “third party breach of confidence” which is also a crime. It may also be grounds for a civil action for compensation, especially in the case of  breach of commercial confidentiality.

Guidelines for doctors on confidentiality are here http://www.bma.org.uk/ap.nsf/Content/Confidentialitydisclosure

A wider discussion on medical confidentiality is here
http://www.ethics-network.org.uk/Policy/pconfidential.htm

Obviously if you are a doctor and journalist then there are great risks. The basic point is to get consent, because confidentiality – like so much else in UK law – is a residual right (ie you have the right unless you expressly give it up). For the rest of  us a look at medical confidentiality is worthwhile, because a lot of the issues are made plain.

Also lawyers owe their clients an absolute duty of confidence, and this is such that the police can not make a lawyer reveal what a suspect has said to them, even though the police may think that the suspect has confessed to a serious crime. A suspect can confess a crime to a lawyer, and then cook up a defence, and the suspect has absolute confidence that his confession will not be revealed by the lawyer.

See Bill Goodwin case:
http://www.geocities.com/medialawweb/billgoodwin.doc

Graham Pink:
http://www.geocities.com/medialawweb/grahampink.doc

PRIVACY: IMPACT OF SECTION EIGHT (FAMILY LIFE) - HUMAN RIGHTS ACT

In addition to state secrets, and commercial confidentiality (trade secrets and ‘whistleblowing’) there is the third area of ‘personal secrets’ or privacy.

This mainly affects tabloid and celebrity journalism and, to a large extent, it is all about the ability to take pictures of famous people in various circumstances.

It also involves printing/broadcasting the details of family life of any person, famous or not.

There is no doubt whatsoever that people would pay a huge sum of money (or rather, a huge number of people would pay a small sum of money) to see a picture of [NAME ANYONE YOU LIKE - eg HM Queen] in the nude. Or even picture of the Queen’s breakfast table (Tupperware containers of cornflakes) Ryan Parry, subterfuge Butler
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2003/11/20/nque20.xml

Also Paul Burrell - Diana’s Butler (public interest was national security)

Also Christopher Meyer - Ambassador to Washington - criticised over incident revealing the colour of John Major’s underpants. Memoires of his time in public office - defended as public interest (decision to go to war over Iraq) or “mere tittle-tattle” (John Major’s underpants).
 
It is perfectly possible to obtain such pictures, especially using today’s modern technology. But would we have a right to publish or broadcast such pictures? The answer to that is YES (if there is consent) and also YES (if there is a public interest - as opposed to ‘interest by the public’  )  PROBABLY NOT (if there is no consent).

The Blair Nanny case:

http://www.geocities.com/medialawweb/blairnanny.doc

INJUNCTIONS

The danger is that the person or company’s secrets you are about to disclose can quiet easily get an injunction to prevent publication/ broadcast. This is very expensive, even if the injunction is nonsense, and is lifted and then you publish or broadcast anyway. The injunction is easy to get because the person asking will say there’s a danger of a crime happening (breach of confidence) and the injunction will prevent the crime. Then the facts of the matter can be argued in front of a judge later. Of course for the publisher/journalist that may be too late. The danger of an injunction comes, as well, when you are checking the information with the person or company. This will alert them and they may well go for an injunction.

An injunction against one media organisation, is an injunction against all publishers. People with something to hide will often go for an injunction (example is Robert Maxwell of course) on the grounds they have little to lose, that the cost of an injunction might deter people from writing about him, and also that the allegations resulting from the disclosure of so-called “commercial secrets”  will be softened by the fog of “legal trouble” and “controversy” around them.

The human rights act and the provision for freedom of expression may be helping guard against injunctions. It is a great shame that it does not mention  “freedom of the press” explicitly.

CELEBRITIES AND PRIVACY

The key case here is long running saga of Catherine Zeta Jones. The issue is the use of the Human Rights Act to create a commercial law of privacy which can be sold. Previously they had to erect fences, etc, to keep photographers out. Now they can use the law

See the “recent cases” section for the latest on Zeta Jones.

Princess Caroline case – the creation of defacto privacy law. Can now only justified the publication of pictures of people if they are engaged in a clear public duty – new dangers for taking “wallpaper” type pictures of identifiable people without permission.

Consent is everything in photography. If they are smiling or posing for the camera then there is no danger of saying it is an invasion of privacy. What about passers by in a picture (still or TV)  - there’s definitely more danger (there’s also a Defamation by juxtaposition danger if the filming is about crime or undesirable activity) – so it is best to keep people out of it, or make sure they are nothing like the focus of the picture, or their appearance is very fleeting in the case of TV. For radio there could be a danger of invasion of privacy, but her issue of identification is of course not so serious. The thing that people are upset about are long-range still cameras – paparazzi pictures of people grieving at funerals, etc.

But this summer the Caroline ruling was weakened by Elton John’s failure in a case over unauthorised pictures of his bald head, and the fact he wears a wig.

See “RECENT CASES” SECTION OF MEDIA LAW WEB for Princess Caroline and Elton John.

But privacy law is string – so the rule is if there’s a picture of a person in your newspaper/ TV station website, make sure you know who hey are, what they are doing and whether or not they have consented to having their picture taken and published.

Also – the Naomi Campbell and Daily Mirror drug rehab case… see recent cases.

 The Max Mosley case is highly sigbnificant. He was defamed, though the story was defensible as true - he did not deny his behaviour with prostitutes. But he claimed that the behaviour was his own private affair and trhat reporting on them was a denial of his section eight rights to normal family life.

One point of conroversy was this. Mosely had acted out sadistic sexual fantasies involving torture and incarceration. The NoW witness, said that these scenes were an explicit reference to Nazi concentration

The key cases in developing privacy law:

This list is illustrative and not exhaustive

Max Mosley - gress gazette article (follow the links on the page)

Notorious litigant Elton John fails in privacy case against Daily Mail. Effect is to weaken Caroline ruling and strengthen ability of press to take photos of celebs in public without permission/payment (08/06)
Section 10 HRA gives no protection to censorship effect of huge Naomi Campbell legal costs (10/05)
Naomi Campbell drugs case/ conditional fee agreement/ costs (10/05)
Caroline ruling strengthened by gay parade case (10/05)
Hello! wins back £1million damages/ latest in Zeta-Jones saga (06/05)
Zeta-Jones case - full set of reports from the Guardian
Beckham Nanny/ 'gagging clause' in contract/ confidentiality (04/05)
Naomi Campbell: Law Lords find in her favour (05/04)
Naomi Campbell case - full coverage from The Guardian
Princess Caroline of Monaco (06/04)

Jamie Theakston (celebrity) - prostitute, although an employee,  has no duty of confidentiality (in the public interest)  (builds on Archer case) 2002
Gary Flitcroft (footballer) - no confidentiality in relationships outside marriage (reversal of previous judgement). Papers free to interview girlfriends of celebrities and sports stars,m especially about ex-marital affairs. (Later used by News of World in Sven Goran Ericksson case).
Mary Bell and her daughter. 2003 - granted lifetime injunction against writing about their personal life, or about them as people (she previously killed a child).

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