Media Law: Privacy

There are several areas of law regarding confidentiality that journalists must consider. These include official secrets, private secrets and the human right of privacy.

The Official Secrets Act 1911 prevents those who have signed a confidentiality agreement with the state from revealing any information they may be privy to. The Act is quite wide reaching; even those who work at the Post Office are required to sign it. However, the main purpose of the Act is to protect national secrets, particularly at times of war.

The law encompassing private secrets is more complex. Protection is extended to protect both commercial and family secrets.

In Coco v AN Clark three elements were set out that were required to form a breach of confidence. The information must have:

•      The necessary quality of confidence;
•      Have been imparted in circumstances imposing an obligation of confidence;
•      There was no permission to pass on the information, and;
•      Detriment is likely to be caused.

Information will have the “necessary quality of confidence” when that information is imparted in circumstances that imply confidentiality.  Information that is already in the public domain, or available from other sources will not have a quality of confidence.

An obligation of confidence arises most often when there is a contractual relationship between two parties, often in an employment relationship. For example, if I knew in advance that the pub I work in was to raise its prices, it is likely that I would be under a common law obligation not to tell anyone in advance. 

Often a gagging clause will be written into a contract. However, even if there is not one present there will be an implied term that any employee will not act in a detrimental way towards the employer’s interests.

Obligations will arise when there is a reasonable expectation of confidence. There is always an expectation on a doctor or a parent to keep information a secret. The obligation is dependent on the importance of the information and the person that you are telling. For example, it is less likely that a brother or sister will be under an obligation than a parent, but could be if the information was serious enough.

The legal duty of confidentiality will pass to a journalist if they know that the information imparted is of a confidential nature. So, a journalist will be liable under the law if they attempt to publish material that they know is confidential that they have obtained from someone in a privileged position. If we are investigating someone for an article it is not a good idea to talk to the parents or doctor of the person in question, as it is likely the duty of confidence will pass to us.

Lastly, there must be a detriment to the person. According to the Spycatcher case that detriment does not have to be a financial one. Instead, a detriment may be caused if the information is disclosed to someone the subject would prefer it not to be.

Human rights law has superseded this common law idea of a relationship between two parties.  The rights of privacy and the enjoyment of family life are guaranteed by Article 8 of the European Convention. On the face of it this article gives complete protection of privacy to someone. However, the Human Rights Act requires that courts must have regard for the right to freedom of expression when coming to a decision. In the Douglas case it was said:

“Everything will ultimately depend on the proper balance between privacy and publicity in the situation facing the court.”

Currently, the private life of Wayne Rooney has been splashed across the front page of The Sun newspaper. Initial analysis of this would conclude that there has been a clear breach of privacy law, as the photos detail a private situation between a married couple, there is no public interest. However, this shows the complex nature of the relationship between celebrities and newspapers. It is likely this is in fact a set-up situation in order to raise the profile of the Rooney family, and to sell more newspapers.