Flashcards in Media Law: 18 Confidentiality and privacy Deck (86):
what are claimants of confidentiality cases generally looking for? What is this different to?
- information to not be revealed
- defamation (where they're after damages or clearing name)
DEF: order to 'hold the ring' until issue goes to full trial
- interim injunction
what problems are posed by interim injunction for the media? result?
- trial takes long time, issue no longer relevant
- media often don't bother taking injunction to court
- therefore serves same purpose as permanent injunction
CASE: origins of confidentiality law
- Prince Albert v Strange
- unofficial drawings by Victoria and Albert
how had confidentiality law developed by 1990s?
- breach of confidence action seen as way to keep info secret
- BUT still needed to fit definition of 'confidential'
how has HRA affected confidentiality
- no separate 'privacy law' in HRA
- Article 8 (private life) taken into account by judges in confidentiality law
what was the celebrity offshoot of confidentiality?
- 'misuse of private information'
- phrase (still unofficial) coined during Campbell v MGN
CASE: in which classic definition of breach of confidence formed
- Coco v A. N. Clark (Engineers) Ltd (1969)
classic definition of breach of confidence
- info has 'necessary quality of confidence' (i.e. private NOT public)
- info obtained in circumstances which imposed 'an obligation of confidence'
- defendant has / intends to make unauthorised use of info
main defences against breach of confidence
- published with claimant's consent
- public already knew info
- in the public interest
what counts as 'confidential info'? what cases established this?
- generally, anything a reasonable person would consider private
- Campbell v MGN (2004)
- law will not protect trivial things
- Coco v A. N. Clark (Engineers) Ltd (1969)
general examples of 'confidential info'
- ideas for commercial products
- trade secrets
- people's sex lives
- health / medical treatment
- company finances
- personal photographs
CASE examples of 'confidential info'
- JK Rowling's plots (Half-Blood Prince)
- Fraser v Thames TV ('Rock Follies' idea)
- NofW discovered 2 doctors diagnosed with AIDS
- unidentified source told The Engineer that Tetra was seeking loan (info in lost company plan...)
can info stop being confidential?
- yes, if it's reasonably old
CASE: old information not granted injunction
- 1976 publication of diaries of former Cabinet minister Richard Crossman (rule: over 10 years)
photographs: more or less confidential?
- often more so than words describing same thing
CASE examples of photo breaches of confidence
- Oasis album printed by Sun
- Jamie Theakston at brothel (story printed, pictures considered more invasive)
- Douglas/Zeta Jones wedding (sneaky Hello! photographer, rights sold to OK!, photos of celeb same as trade secret, OK! also had case against Hello!, 1 million compensation paid)
requirements for 'obligation of confidence'
- info must reasonably be thought of as private
- person receiving it must realise it's intended to be confidential
classic examples of confidential info
other examples of confidential info the law has tried to implement
- personal relationships
- employer-employee relationships (often clause in contract)
- documents used in court cases (exchanged by sides)
- info in confidential circumstances (has to be obviously confidential, e.g. security at Oasis shoot)
- people at risk of harm
how do the courts view personal relationships
- started out covering just marriage
- evolved to include extra-marital relations
- more short/casual a relationship the less protection it has
CASES about personal relationship
- Garry Flitcroft (footballer) extra-marital relationships, injunction failed
- Lord Coe extra-marital affair, lover's freedom of expression outweighed
- Michael Barrymore, former affair wanted to reveal info about wife: too far!
CASES employer-employee breach of confidentiality
- Lady Archer against her PA
- former royal servant 'Courting Disaster' (1990)
what if there's no clause in contract?
- employees still take on implied duty of 'fidelity'
- obligation not to do anything that would damage employers interests
- leaking can be breach of confidence even after leaving job
CASE: employee relationship discounted (explain)
- Tillery Valley Foods v Channel 4
- investigative journalist gained employment
- Tillery only using breach of confidence law because thought they'd lose defamation
DEF: law protecting whistle-blowers
- Public Interest Disclosure Act (1998)
- examples: safety procedure / insider trading
- only covers whistle-blower, NOT media
- media usually covered by public interest defence
how are civil servants / armed forces / secret services kept quiet?
- no written contract, but courts accept duty of confidence
- Official Secrets Act 1989 allows leaked info to be prosecuted
- juries have proven unwilling to convict unless real national security risk
- governments have turned to confidentiality instead
CASES: government employees
- Peter Wright's 'Spycatcher' (1986), injunction until info public from other countries
- 'My Country, Right or Wrong' interviews with secret services, A-G read scripts first
which discussions are protected by confidentiality?
- between Cabinet minsters
CASES: people at risk of harm
- Veneables and Thompson v News Group
- Mary Bell (murdered 2 children when she was 11)
- Maxine Carr (Ian Huntley's girlfriend)
- Mazher Mahmood (rejected - protecting his earnings as investigative reporter, not his well-being)
where does the media stand in all this 'obligation of confidence' malarkey?
- if they obtain info via relationship in which there's an obligation of confidence (i.e. a celeb's nanny) then they can be equally liable
- where the media are genuinely unaware, there's no breach
DEF: publishing information without consent
- 'unauthorised use' (usually straightforward for media cases)
DEF: new type of breach of confidentiality
- 'misuse of private information'
- originated in balancing act between Articles 8 and 12 of HRA
requirements for 'misuse of private info'
- did claimant reasonably expect info to be private?
- does this outweigh another individual's freedom of expression?
how to ascertain 'reasonable expectation of privacy' in tricky cases
- it will give substantial offence
- NOT to the reader, to the subject of the info
outcome of Campbell v MGN (2004)
- basic facts about drug problem (and visiting Narcotics Anonymous) fine because she promoted false image of herself
- specifics of treatment were confidential (as always with medical treatment)
other misuse of private info cases
- McKennitt v Ash: Canadian folk singer travelling with 'close' friend
- Prince of Wales overseas diaries (to select group, marked Private & Confidential)
- Lord Brown of Madingly (head of BP) and boyfriend Jeff Chevalier
- police blogger uncovered by Times (blogging is public activity)
- John Terry's affair (injunction actually to protect rep and sponsorship deals)
CASE: children have more expectation of privacy than adults
- David Murray (J. K. Rowling's son)
- children of celebs get privacy unless parents publicise them
when consenting sex is involved...
- reasonable expectation of privacy
which aspects of sex are private and which aren't?
- details of sexual activities = private
- fact a sexual relationship exists = not private
CASES: sexual activity deemed private
- Max Moseley's Nazi orgy
- Elizabeth Jagger sex acts in nightclub
where do we stand on photographs?
- can be more sensitive than words
- no consensus on photos of people on the street (case-by-case basis)
- Elton John walking from car (fair game)
- JK Rowling's son (not cool)
- nude photos of Siena Miller taken on film shoot (damages paid)
- campaign of harassment against Siena Miller (settlements)
- pictures of Abu Qatada's family (injunction granted)
- BKM v BBC secret care home filming
does the info have to be true to be breach of confidentiality?
- traditionally, YES
- but with 'misuse of private info' McKennitt case suggests not...
CASE: Von Hannover v Germany (2004)
- Princess Caroline of Monaco complained of paparazzi harassment
- Germany courts reckoned as a public figure her ordinary life could be photographed
- ECHR reckoned this was balls
theory arising from Princess Caroline case
- whether photos/info add to 'debate of general interest'
some examples of how 'misuse of private info' is all uncharted territory
- Elton John didn't stop paparazzi, BUT Princess Caroline did
- Max Moseley's sex was his private business, BUT Theakston's wasn't a few years earlier
things to remember about settlements
- celebs seem to be seeking them more
- don't set precedent or even determine whether case would have been won
- interesting to see which cases media feared could have been won
CASES that have gone to settlement
- Blairs holidaying in Barbados
- Hugh Grant, Liz Hurley and Arun Nayar on holiday in Maldives
- Matt Lucas suicide of civil partner in Express
- Jude Law holidaying with children in Hello!
- Brangelina divorce stories in NotW
defences against breach of confidence actions
- info already in public domain
- public interest
time limits on breach of confidence actions
- 6 months from breach (for both types of breach)
CASES: info in public domain (inconsistency here)
- Lennon tried to stop ex-wife Cynthia publishing marriage stories, but both had talked to press already
- Spycatcher (interim injunction 1986, in public domain by 1990)
- Watford Observer story on Sun Printers (Maxwell) from leaked document later circulated more widely
- Blair family life via nanny, Mail on Sunday already being distributed, but injunction on further stories
are addresses confidential?
- not in themselves
- they can be when combined with details of who lives there
CASES: differing on addresses
- Heather Mills moving to Hove (address unlikely to remain secret anyway)
- Green Corns children homes
what questions do courts ask in public interest defences?
- public interest of revealed info outweighs public interest in respecting confidential info generally
- 'the public interest' vs 'things the public are interested in'
CASES: public interest defence successes
- Initial Services (laundry) ex-employee revealed they'd been evading tax
- Watford Observer story about Sun Printers: big local employer
- 1970s scientology courses detailed in book, considered danger to public
- Thatcher bio snaffled from Times by Mirror, argued comments on Major important during conference season
CASE: public interest failures
- Green Corns children homes: injunction on addresses did NOT stop a public debate
is wrongdoing a failsafe measure of public interest?
- generally yes
- newspapers don't even have to be able to prove it, just to have considered there sources and done bit more digging
when is wrongdoing not a solid public interest defence? (+ CASE)
- when it would have been just as good to tell the authorities
- case of jockey involved in conspiracy, should have told police or Jockey Club
when do celebs become public interest
- when they portray a particular public image / role model-ness
- BUT this only applies for serious misbehaviour (e.g. didn't apply to McKennitt or Princess Caroline)
examples of celeb public interest defences
- Naomi Campbell drug treatment (said she wasn't on drugs)
- Posh & Becks marriage turmoil (portrayed themselves as blissfully married)
how does is public interest different for Government cases?
- public interest test must be stricter
- Gov't has to prove publication would harm public interest
- also effects private companies fulfilling role of gov't bodies (e.g. KPMG working for Liverpool City Council)
remedies for breach of confidence
- order for delivery up
- account of profits
aims of an injunction
- stop publication happening
- stop further publication
types of injunction
- interim (puts publication on hold until trial)
- permanent injunction (if claimant proves case at trial)
why are interim injunctions so problematic for the media?
- postponing publication can kill story
- judges can slap 'em on dead quick (by phone, at night, etc.)
what must courts consider before issuing injunction?
- freedom of expression (Article 12 of HRA)
- any privacy codes (e.g. in PCC or Ofcom)
what must the claimant be able to do before receiving an injunction?
- be able to prove that a trial would 'likely' go in their favour (HRA stuff)
- EXCEPTION: if disclosure of info would be very seriously damaging to them
HRA: what rights do journalists have regarding interim injunctions?
- must be present when injunction granted
- OR claimant has taken all steps to notify journalist
- OR there's a compelling reason why they shouldn't be notified
CASES: journalists' knowledge affecting injunctions (2 very different approaches)
- Douglas / Zeta-Jones wedding: only contact OK! made with Hello! was phoning there offices at night and getting through to a security guard
- Terry's affair: injunction lifted because journos not told and judge said couldn't decide public interest without them being present to give their input
what might supersede an injunction (though rare in confidence cases...)
- monetary compensation doing the job just as well
- (obvs, mostly the issue is about keeping things SECRET rather than damages)
CASES: money has trumped secrecy
- Douglas / Zeta-Jones wedding: their right to sell photos had been upset
- Terry's affair: John didn't give a shit about it, but was salvaging a lucrative reputation
what legal risk does a claimant take when taking out an interim injunction?
- 'cross-undertaking in damages'
- if it goes to court and they lose, they have to pay defendant damages and maybe their legal costs
who does an injunction apply to?
- any media organisation who is aware of the injunction
DEF: an injuction so wide that media can't even report there's been any action to suppress the info in the first place
- 'super injunction'
how do injunctions fare across borders?
- an injunction in England doesn't hold anywhere else (including Scotland!)
- claimants usually apply for injunctions in multiple places
problems faced by the media after an order for delivery up
- can reveal who the source is
- destroying documents after order is contempt of court, so have to decide whether to destroy before
- court can order that a source be revealed (though this is usually covered by protection of sources in Contempt of Court Act 1981)
difference between defamation and confidentiality damages (+ example)
- confidentiality much lower
- Naomi Campbell received 3,500
DEF: an 'account of profits'
- amount of money defendant gives claimant based on profits made from publishing confidential material
- an ALTERNATIVE to damages
how is 'account of profits' calculated?
- for books: entire profits of book may have to be given
- for newspapers/magazines: courts calculate the profit made on a specific issue
why do defamation and confidentiality combine to make a nightmare for the media?
- media gets a source, wants to check it (to avoid defamation), but if they tell the originator they've got confidential material they'll try and slap an injunction on it, so the media are discouraged from ascertaining truth from source
advice on using confidential material and defamation
- expect judges to NOT be happy if you used confidential material without checking facts
- try and get same info from other sources
remember Art 10 in HRA is making pre-publication injunctions harder
at what point can a claimant sue for privacy using the HRA?
- once all other channels of English law have proven fruitless
- Act applies to 'public authorities
who in the media counts as a 'public authority' under HRA?
- maybe Channel 4
- regulatory bodies such as the PCC and Ofcom (could only sue if claimant thought they'd failed to protect their rights)
PCC points on privacy
- everyone entitled to private and family life, home, health and correspondence (including digital)
- editors will be expected to justify themselves
- unacceptable to photograph people in private places without consent
- fame of parent does NOT undermine privacy of child
- press should NOT publish info acquired using hidden cameras, intercepting phone calls / emails, unauthorised removal of docs/photos
- ALL this may be permitted if in public interest