Privacy and Confidentiality

• Breach of confidence


  The law on breach of confidence is at its most straightforward in protecting commercial secrets. The duty to preserve confidentiality can automatically pass to anyone else who receives the material and realises its confidential nature. So, a media organisation to which a business's commercial secrets are leaked may also be successfully sued if it publishes these, unless it has a defence.
• Elements of a breach of confidence

  These three elements must be satisfied to bring a claim damages or seek an injunction for breach of confidence.

  - Must have 'the necessary quality of confidence'

  - Must have been imparted in circumstances imposing an obligation of confidence

  - There must be an unauthorised use of that information to the detriment of the party communicating it.
• Article 8 - Article 10

  The right to privacy is guaranteed by Article 8 of the European Convention on Human Rights.

  Article 8 - Protects the privacy of family life. They make specific references to certain aspects of a person's life which are private and so normally deserving of protection.

  "Everyone has the right to respect for his private and family life, his home and his correspondence."

  Article 10 - They underpin 'public interest' journalism, meaning that it can be legal for journalists to breach someone's privacy, (freedom of expression).

  "Everyone has the right to freedom 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."

  Enshrined in the Human Rights Act 1998 - Sections 8 and 10
• Human Rights and The Media

  Prevents misuse of private information

  - If there is no consent

  - If subject has a reasonable / legitimate expectation of privacy

  Courts have become more willing to rule that adulterous or casual sexual affairs are matters in which one or both of the people involved have a reasonable expectation of privacy.

  Information about health is normally treated as being of the highest confidentiality.

  Subject to public interest defence.
• What the ethical codes say... IPSO

  Everyone entitled to privacy in home, health and correspondence.

  In circumstances where there is a reasonable expectation of privacy.

  Should not photograph people in private places without consent.

  Health matters also considered private.

  Subject to public interest exemption.
• What the ethical codes say... OFCOM

  Abides by principle of HRA

  Informed consent

  Where there is a legitimate expectation of privacy

  Breach of privacy must be "warranted"

  - ie in the public interest
• Remedy

  The remedies which a court will provide for an infringement of privacy include an order for the infringers to pay damages as financial compensation, and an induction to prevent material being published or to stop publication continuing.
• Injunctions

  A person who learns that a media organisation intends to publish information he/she considers private can seek a type of court order called an injunction to ban its publication. Initially, a judge may grant a temporary injunction to 'hold the position' until the court can rule after a full trial hearing. Injunctions may give anonymity to a claimant and initial court hearings may be held in private so that the proceedings themselves do not inadvertently reveal the information.

  A so-called 'super-injunctions' is described as such because it includes a clause which bans publication of any information about a case, including the existence of the proceedings and the fact an injunction has been made, for a short period of time to avoid the order being rendered pointless.