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
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
- 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
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
“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
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.
- voluntary self-regulation. Voluntary self-restraint on part of national
editors went sent a memo by the Ministry of Defence.]
Official secret act
The Zircon case
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.
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.
depends on the type of secret information at stake, and partly on the
expectation of the person imparting the information that it will be
A person is in breach
of confidence if they pass on information which:
- 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
- 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
So remember ordinary
secret information (both personal/ private and commercial) must have:
- quality of confidence AND…
- no permission
to reveal AND…
- cause actual detriment.
If any of the above
is missing, then the information is NOT confidential, and it can be
revealed without breach.
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
Once again our old
friend The Public Interest (and its three point definition given in
the PCC code of conduct).
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
HSE on confidentiality:
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
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
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
Public Concern at
(note their advice
on whistleblowers talking to lawyers and internal grievance people
before contacting journalists).
PCAW on “whistleblowing” in
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
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
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
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
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
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
Also Paul Burrell
- Diana’s Butler (public interest was national security)
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
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:
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
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.
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.
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
CASES” SECTION OF MEDIA LAW WEB for Princess Caroline and Elton
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
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
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
Mosley - gress gazette article (follow the links on the page)
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)
10 HRA gives no protection to censorship effect of huge Naomi
Campbell legal costs (10/05)
Campbell drugs case/ conditional fee agreement/ costs (10/05)
ruling strengthened by gay parade case (10/05)
wins back £1million damages/ latest in Zeta-Jones saga
case - full set of reports from the Guardian
Nanny/ 'gagging clause' in contract/ confidentiality (04/05)
Campbell: Law Lords find in her favour (05/04)
Campbell case - full coverage from The Guardian
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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