“A duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others (A-G v Times Newspaper (19920 1 AC 191).” (Ref.3)
Confidentiality is based on expectations, we have more of it with for example, our teachers or doctors but have less with family, friends or other people. At the same time doctors or lawyers have a duty not to. To have confidentiality there have to be circumstances implying the need imposing an obligation of 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.” (Ref.2)
“Breach of Confidence is based upon the principle that a person who has obtained information in confidence should not take unfair advantage of it. (...)” (Ref.3) Not only governments use breach of confidence to protect information they regard as secret as individual citizens can use it for the same purpose to protect their privacy. Having that aspect in mind, “breach of confidence received a strong boost when the Human Rights Act was implemented in 2000.” (Ref.3) All above “can affect journalists because the main means used to prevent breach of confidence is an interim injunction stopping the media from publishing confidential information.” (Ref.3)
A person is in breach of confidence if they pass on information which has “the necessary quality of confidence”, the information was provided in “circumstances imposing an obligation” and was no permission to pass on the information; and also “detriment” is likely to be caused to the person who gave in the information (Ref.2). For the breach of confidentiality to take place not only all above circumstances have to accompany the passing of the information but also a person that the breach has been done to, has to show that damage has been done through the breach of confidentiality, unlike it was in case in defamation when person only had to show that the damage could be done to them.
For information to be in risk of breach of confidence it should be passed in certain circumstances. The elements thought to support information to be seen as breach of confidentiality when it has so called ‘necessary quality of confidence’. “The information must have been imparted in circumstances imposing an obligation of confidence; and there must be an unauthorised use of that information to the detriment of the party communicating it (...).” (Ref.3)
Journalists should be highly aware of the risks of breach of confidence in situations when for example, “the information may have been obtained indirectly from confider. A third party (...) who comes into possession of confidential information and realises it is confidential may come under a legal duty to respect the confidence.” (Ref.3)
Confidentiality means secrets in other words. There has been an Official Secrets act created in 1911 covering two types of secrets. Section 1 of the act covers serious secrets like army, war situations, military, power stations, nuclear basis etc. Places like this are protected under the act and usually signed with the sign ‘no photography under the section 1911 Act. It is also important not to film or photograph accidently places sampled with that sign. Official (statutory) secrets belong to this section as ‘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, 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 cannot take photos, or make a drawing or anything of that sort without permission”.’ (Ref.2)
Section 2 of the Official secrets Act covers secrets of a lighter matter than section 1, like post office for example. Official secrets Act from 1989 has been created to “replace section 2 of the Official secrets Act 1911 by provisions protecting more limited classes of official information [11th May 1989]. “ (Ref.4)
There are now three areas of concern when talking about Confidentiality and secrecy under these two sections:
1. State secrets (mainly affecting certain types investigative journalism, and reporting communities with links to the armed forces) - Official Secrets Act 1989 http://www.legislation.gov.uk/ukpga/1989/6/contents
2. Commercial secrets (vital for B2B, and solid news reporting, and investigative reporting, and specialist reporting - eg health) - Common Law Confidentiality
3. Privacy (mainly a matter for tabloid/ celeb journalism) - ‘Privacy’ law, and Human Rights Act, section 8 ‘normal enjoyment of family life’. (Ref.2)
More over, under the section 33 Terrorism Act, you can be also arrested when breaching or being seen to be in the risk of the breach of the act(Acpo- the defence).
The Zircon case
“Throughout the latter part of 1986 and the first weeks of 1987, the investigative journalist Duncan Campbell was working on a BBC television series to be called Secret Society. Campbell had been a thorn in the side of the intelligence establishment for years. (...) An earlier attempt to convict Campbell and one of his sources under the Official Secrets Act had failed; this was one of several cases which had prompted the Home Office to draw up a new secrets law. Campbell discovered that the government planned to build a new satellite which would enable GCHQ to eavesdrop on the Soviet Union. He believed the plan violated a 1982 government agreement to inform the House of Commons Public Accounts Committee of any military project costing more than a certain amount. Inevitably, word of his inquiries reached government, and the Prime Minister decided to act. Nigel Lawson, then Chancellor of the Exchequer, recounts in his memoirs that 'the government managed to lean on the BBC to ban the programme'. Faced with the prospect of an injunction, Campbell rushed his research into print in the New Statesman of 23 January 1987. The spy satellite, hitherto one of Whitehall's most cherished secrets, had become a major story, as had its code-name: ZIRCON. (...) A member of the Defence Intelligence Staff at the time says, 'It was held at an incredibly tight level. We knew that there was something called ZIRCON and we knew it would be incredibly expensive.'(...) The publication of Duncan Campbell's article in January 1987 brought the hitherto 'black' project into the glare of publicity. Following publication (...) the Attorney General, to issue an injunction against [Campbell] . . . in a somewhat unfortunate blaze of publicity, the police raided offices both of the BBC in Glasgow and of the New Statesman in London.' The sight of Special Branch detectives carrying off videotapes and papers antagonized liberal opinion, and was evidence of how deeply entrenched the Prime Minister had become in her desire to protect the intelligence services from journalistic scrutiny, even if the political cost was high. (...) Prime Minister's extreme sensitivity may have been connected with the fact that she was close to having to make a decision about ZIRCON at the time that Duncan Campbell's programme was being made.(...) The cost to the UK of owning and maintaining a single ZIRCON satellite would have added about 100 million a year to GCHQ's budget in perpetuity. (...) The saga of Britain's spy satellite, complete with court injunctions and police raids, coincided with episodes in two other difficult and long-running public dramas involving Thatcher and the intelligence services: banning trade unions at GCHQ and trying to prevent the publication of Peter Wright's book Spycatcher. (...)
(...) In March 1987 the Australian court rejected the UK government's request for an injunction. An appeal failed six months later and the matter then went to the House of Lords, where the government also lost. (...) In a subsequent BBC television interview with Panorama's John Ware, Wright's most disturbing allegation - that there had been a plot against Harold Wilson's government - fell apart on screen, with the ageing writer admitting that it had not involved thirty MI5 officers, as stated in his book, but had consisted of little more than idle chatter between Wright himself and a small number of his colleagues. What Security Service officers resented was the fact that the government attempt to ban publication had invested Wright's allegations with credibility. Anthony Duff, Director General of MI5 at the time the decision was made to proceed against Wright, told me, 'The whole thing was a disaster in terms of (a) making a lot of money for Peter Wright and (b) holding up the British state to ridicule. I went along with it. I should have tried to stop it.' Duff had deferred to his Legal Adviser, Bernard Sheldon, and other government law officers who had originally advocated prosecution. (...) Thatcher's desire to keep all intelligence matters shrouded in darkness was central to the union problems at GCHQ, the ZIRCON police raids and the Spycatcher court battle. Some senior figures, such as Anthony Duff at the Security Service, were already undermining this strategy by discreet briefings of newspaper editors.(...) ” (Ref.)
Confidentiality in workplace (commercial confidentiality and gagging clauses)
The quality of confidence has different obligations of secrecy is dictated by different functions and organisations it is implied in and so it can arise in variety of ways like for example Contractual relationship (people working together), membership of security services (no contracts of employment with the Crown, but a duty of confidence coming out of the nature of their employment and requirement of national security also with subject to the defence of public interest; or even domestic relationship securing privacy.
If 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”. (Ref.2) 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”. (Ref.2)
For example in contracts of employment there are so called “GAGGING CLAUSES” which happen if a person is employed by another for wages they owe the employer a common law “duty of confidence”, 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. This secrecy could extend to matters of public concern. 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. So if somebody has a ‘gagging clause’ they are taking a huge risk in speaking to a journalist about their company either without permission. (Ref.2)
“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 (and its three point definition given in the PCC code of conduct).” (Ref.2)
If confidential information is passed to a journalist he/she will protect the source in the best possible way following the NUJ code of conduct (Bill Goodwin case- below), however if they are identified, as they often will be by the nature of their information, then they face very severe penalties and there will be nothing that journalist will be able to do to help them. (Ref.2)
Quite an interesting case to study is case of Graham Pink who 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. (Ref.2)
“NHS 'whistle-blower' wins pounds 11,000 damages: Health authority pulls out of tribunal brought by former nurse” written by JUDY JONES on June 1993.
“Stockport Health Authority pulled out of the industrial tribunal hearing brought by Graham Pink, 63, a former charge nurse at Stepping Hill Hospital, citing the escalating legal costs of contesting his allegations. It has already spent pounds 90,000. Mr Pink was sacked nearly two years ago after publicising claims that elderly patients at Stepping Hill routinely received poor standards of care. (...) During his campaign Mr Pink appeared in national newspapers, on television and wrote what the tribunal heard was a 'torrent of words'. He compared conditions on the wards at night to those in jail. He was alleged to have breached confidentiality when he released details of an incident involving an elderly, dying man. The man's family claimed he could be identified from details, which they said had caused distress. (...) Mr Pink could not be contacted for comment, but Robin Lewis, his solicitor, said: 'This is not a settlement, it is a concession.' His client was still considering whether to pursue his original claim for reinstatement. But he had no choice over accepting the withdrawal of the health authority. 'Graham Pink has won his battle. Stockport Health Authority has admitted that it acted unfairly when it dismissed him. (...)” (Ref.7)
Billy Goodwin case (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. 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. (Ref.2)
A good example of award winning protection of the source was by Bill Goodwin, who received an Award, as the journalist who risked imprisonment for keeping his sources confidential. “In 1989, as a 23-year old trainee journalist on the Engineer magazine his article based on leaked information was suppressed by an injunction obtained by the company he was writing about. The company, Tetra Business Systems, also obtained a court order requiring him to identify his source - which he refused to obey. (...) If journalists breached their undertakings to their sources they would not be trusted with information, and the press would be unable to expose wrongdoing. The company was determined to identify the whistleblower and asked the court to imprison the journalist for contempt. The Court of Appeal refused to even hear his appeal unless he handed over his interview notes in a sealed envelope, to be opened if the decision went against him - which he again refused to do. The House of Lords found that he had been in contempt, but the prison sentence which had been widely feared was not imposed. The ruling made clear that section 10 of the Contempt of Court Act 1981, which had been designed to protect journalists' sources, was largely useless. Section 10 allows a journalist to withhold the name of a source unless disclosure is "necessary in the interests of justice". It had been thought this would apply only in serious cases, for example where there was a risk of miscarriage of justice during a trial. But the Law Lords ruled that it permitted a court to order disclosure merely to help a company identify and sack a whistleblower. Mr Goodwin has challenged this ruling as a contravention of Article 10 of the European Convention of Human Rights - which guarantees freedom of expression. In September 1993 the European Commission on Human Rights ruled his case admissible, and asked the British government to try and reach a settlement with Mr Goodwin - who is seeking a change in British law to protect sources properly.(...) (Ref.6)
Disclosure in the public interest: Section 12 vs Privacy: Section 8 (impact on family life) , Human Rights Act
Within the commercial law there are not only business secrets but also family secrets. Confidentiality is residual, as mentioned before; everyone has a right to it (as soon as they turn 16). On one hand there is always the need of preserving privacy in the public interest but on the other the public interest also stands for the fact of making people aware of matters of public concern.
The Human Rights Act 1998 says in section 12 that when the court is considering imposing an injunction in a matter affecting freedom of expression, and where journalistic material is involved, it must have particular regard to the extent to which it is, or would be, in the public interest to be published. (Ref.3) This section also says that “there shall be no prior restraint in a media case ‘unless the court is satisfied that applicant [that is the person asking for the injunction] is likely to establish that the publication should not be allowed’ when the case comes to trial.
“Until 2000, English law recognised no right to privacy. But on many occasions people who believed their privacy was about to be infringed attempted to use the law of breach of confidence to prevent intrusions.” (Ref.3)
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. (Ref.2)
Interesting cases covering this matter would be for example:
- Paul Burrell - Diana’s Butler (public interest was national security)
- 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). (Ref.2)
INJUNCTIONS
“A person who possesses information to a journalist may have received it confidentially. If the person to whom the confidence belongs (the confider) discovers, before the paper is published or the programme is broadcast, that the information is to be disclosed, he/she can try to get a temporary injunction prohibiting publication of the confidential material.” (Ref.3)
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. (Ref.2)
In Human Rights Act 1998 section 12 it is intended to provide some protection against injunctions in matters involving freedom of expression.
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. (Ref.2)
“In 1987 the Court of Appeal held that when an injunction is in force preventing a newspaper from publishing confidential information , other newspapers in England and Wales that know of the injunction can be guilty of contempt of court if they publish that information, even if they are not named in the injunction.” (Ref.3)
2 Section 8 of the Ofcom Broadcasting Code states that the principle aimed for is to ensure that broadcasters avoid any ‘unwarranted’ infringement of privacy, either in programmes or in connection with obtaining material included in programmes.” (Ref.3) From recent cases for example, Ofcom launched an investigation in 2008 after the presenters Jonathan Ross and Russell Brand left series of lewd phone messages on the answering machine regarding sexlife of relatives of veteran actor Andrew Saches.
See further posts on subject of studying Breach of Confidence and secrecy here:
‘Max Mosley, Catherine Zeta Jones and other cases - CELEBRITIES AND PRIVACY’
References:
Ref.1) Media Law Lecture ba Journalism, year 3, week 5
Ref.2) Notes from the Media Law section on Winchester Journalism site for third year ba students (updates, year 3, BA Journalism 2010) week 5 http://journalism.winchester.ac.uk/?page=102
Ref.3) McNae’s, Essential law for journalists, D.Banks, M.Hanna (20th Edition 2009)
Ref.4) Official Secret Act 1989: http://www.legislation.gov.uk/ukpga/1989/6/contents
Ref.5) The Zircon case: http://www.fas.org/irp/eprint/alpha/zircon.htm
Ref.6) Bill Goodwin case: January 1994, freedom of information awards: http://www.cfoi.org.uk/awards93pr.html#goodwin
Ref.7) Graham Pink case: “NHS 'whistle-blower' wins pounds 11,000 damages: Health authority pulls out of tribunal brought by former nurse” article: http://www.independent.co.uk/news/uk/nhs-whistleblower-wins-pounds-11000-damages-health-authority-pulls-out-of-tribunal-brought-by-former-nurse-1491719.html
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Ref.8) ‘OK! magazine wins appeal over Zeta-Jones wedding photos - but at a price’ article from Mail Online, by STEVE DOUGHTY and RICHARD SIMPSON, 03 May 2007 http://www.dailymail.co.uk/tvshowbiz/article-452164/OK-magazine-wins-appeal-Zeta-Jones-wedding-photos--price.html
Ref.9) A canny kiss and tell. The legal cost of the News of the World's Max Mosley scoop may be almost £1m, but the payoff in terms of sales and online hits could mean it was worth every spanking new penny, writes Chris Horrie, The Guardian, Monday 28 July 2008 http://www.guardian.co.uk/media/2008/jul/28/mosley.newsoftheworld
Ref.10) Press Gazette Journalism today, article: “Max Mosley's 'outrageous' bid to extend privacy law will be 'deeply resisted by media” http://www.pressgazette.co.uk/story.asp?sectioncode=1&storycode=42168&c=1
Ref.11) Princess Caroline of Monaco (06/04) http://www.legalday.co.uk/lexnex/simkins04/simkins200704.htm
Ref.12) Naomi Campbell wins privacy case article on BBC news, May 2004 http://news.bbc.co.uk/1/hi/uk/3689049.stm
Ref.13)Mirror wins Campbell appeal article on the bbc news website: http://news.bbc.co.uk/1/hi/uk/2327385.stm
---------------------------------------------------------Refferences for part 2: Ref (1-3) & (8-13)----
