Thursday, 3 November 2011

Law lecture 6 - Confidentiality and privacy

Confidentiality – official secret act & test of confidentiality
Privacy – disputed territory between article 8 and 10

In the public interest – not just of interest to the public

public interest: pcc definition: detecting or exposing crime or serious impropriety, protecting public health and safety/ preventing the public from being mislead

confidentiality – official secrets act
The new act eliminated the public interest defence if you breach this act. There is no protection to the journalist just because the info was previously published

Leaked secret information to a journalist is potentially very dangerous.

Only one defence via the human rights act with article 10: freedom of expression

Official secret act 1911: offence – punishable by 14 years in prison to

approach or inspect a prohibited space
make a sketch, a plan or model that might be of interest to an enemy
obtain, collect or communicate info that may be useful to an enemy

common law secret: entitled to have secrets so long as it's not against the public interest, a right to pass on this secret and that it will be kept secret and won't be passed on to other people.

Someone who's not entitled to pass on our secret: lawyer or doctor for instance, employee or very close member of family – if someone reveal secret info to a journalist, it could be third party breach of confidence, which is a crime.

If someone can persuade a judge that a third party breach confidence is a bout to take place because of your article, that person can obtain an injunction to prevent the story being published. You should contact the concerned people/organisation before you publish the info, otherwise it will look like you haven't tried to check the info was true or not.

Quality of confidentiality
* has the necessary quality of confidence – this is important and not already known
was provided in circumstances imposing an obligation – when a reasonable person would think it would be kept secret
there was no permission to pass on the information
detriment is likely to be caused to the person who gave the information
if any of the above is missing, then it's not confidential and it can be revealed without breach


Personal secrets or privacy

article 8 states: everyone has a right to respect for his private and family life, his home and his correspondence

Common law: judges make the law as they go along...? statutory law is decided in parliament/house of commons

it can involve publishing the details of family life of any person, famous or not. Easy to obtain pictures, but do you have the right to publish them? Only if you have consent. Explicit/implicit consent and it has to be in the public interest.

Princess Caroline – case 2004

ECHR ruling

there is no legitimate public interest in knowing the whereabouts and behaviour of individuals generally in their private life despite appearing in public, regardless of their degree of fame.
A legitimate expectation of protection of one's private life is to be extended to be the criteria for assessment.
A fair balance is to be struck between the right to privacy and the freedom of press


Easy to get because the person who wants him claims that something illegal is about to happen (breach of confidence)

Be aware that injunctions with anonymity and super injunctions (not allowed to say anything) are different.

Super injunctions have been broken by MPs using parliamentary privilege – and journalists using qualified privilege.

Max Mosley case

in his judgement Mr Justice Eady said that Mosley had a reasonable expectation of privacy – in relation to his sexual activities – no matter how unconventional they were.


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