BREACH OF CONFIDENCE 3/12/20161

What is Breach of Confidence? Spans several areas of law - Intellectual property, Tort and Equity Based on principle that someone who has obtained information in confidence should not take advantage of it in an unfair manner. 3/12/20162

Confidentiality We meet this in various situations:- Documents passed to the media – anonymous or otherwise e.g.Tisdall Journalists’ sources are owed duty of confidence Commercial information Personal private information - medical records/personal relationships 3/12/20163

Remedies Main remedy sought against media organisation = Injunction to prevent use of material (or publication of information) Other remedies include ‘delivery up of profits’ (in commercial cases) damages 3/12/20164

Definitions Various tests formulated since 1969 Different cases - see: Coco v Clarke (1969) – classic elements Att-Gen v Guardian Newspapers (1990) Australian Broadcasting Company v Lenah Game Meats Pty ( 2001)- criticism of this test 3/12/20165

Development of use of B of C ‘Spycatcher’ case – why not use Official Secrets Act? Ponting case Useful to ‘manage’ news Injunction against one is injunction against all - see specimen order on Inforrm’s Blog 3/12/20166

Effects of Human Rights Act Look at s.12 Court must not grant injunction unless satisfied that the person seeking it is likely to establish at trial that the publication of the material should not be allowed Cream Holdings v Banerjee (2004) Meaning of ‘likely’ – ‘more likely than not’ 3/12/20167

Courts must be cautious They must consider: a. The extent to which the material has or is about to become available to the public OR b. it is or would be in the public interest for the material to be published and Any privacy code 3/12/20168

Disclosure in the public interest When considering disclosing a journalist’s source ask: Is the disclosure of the source necessary? See the 3 stage test formulated by counsel in Ashworth Security Hospital v MGN Ltd (approved by HL) Query - is public interest test needed if Art 10 rights engaged? See Goodwin and comments of ECHR 3/12/20169

The 3 stage test 1. Are the interests of justice engaged? 2. If so, the court has to consider whether disclosure is necessary to achieve the relevant ends of justice. 3. As a matter of discretion, court must weigh specific interests of claimant against public interest in protecting journalist’s source 3/12/201610

How the law has been developed against the media Used in serious cases – e.g.Venables & Thompson/Mary Bell case The early ‘privacy’ cases e.g. Douglas & Zeta Jones/Theakston/a v b plc (Flitcroft) 3/12/201611

The development of the law & Art 8 Art 8 now covers information that is personal & private so any application subject to the process discussed next week under ‘privacy’ Art 8 does not cover commercial information 3/12/201612