CONFIDENTIALITY

BREACH OF CONFIDENCE  Breach of confidence is based on the principle that a person who has obtained material “in confidence” should not take unfair advantage of it.  It’s used by Governments, companies and private individuals – often to protect their privacy. It was boosted by the passing of the Human Rights Act.  It protects ideas and information – it’s unsafe to assume that because something is in the public domain it can be freely used.  If journalists obtain confidential information indirectly (say, from a mole) we have a legal duty to protect the original holder – especially if the material was obtained unethically by trespass or theft.

HOW THE MEDIA IS AFFECTED  We face a dilemma if approached by a person who has information about, say, some newsworthy misconduct – and that information was confidential.  Fair play and the libel laws suggest we should approach the person, or company, for their comment. But we could then face an immediate injunction preventing publication.  Once an injunction is obtained it affects EVERYBODY – not just the publication involved in the story. Injunctions can be challenged – disobeying them is a contempt for which we can be fined.  We can also be ordered to reveal our sources, hand over the confidential material, and possibly hand over any profits made from using it. The aggrieved person can seek damages.

THE PUBLIC INTEREST  Article 12 of the Human Rights Act says, where journalistic material is involved, a court must consider the public interest in the material when an injunction is sought. And Article 10 of the HRA protects the right to free speech.  These two aspects are then weighed, in court, against a person’s right to confidentiality.  There also needs to be “sufficient quality of confidence” – in other words how much of the material had already been made public.  In the Watford Observer case, the newspaper successfully challenged an injunction because it was shown to be in the public interest to publish a story about a printing works which was losing money and cutting its workforce.

THE PUBLIC INTEREST  In the case of Lion Laboratories, the publication of confidential information regarding the fact that a police breathalyser machine didn’t work was also held to be in the public interest.  Michael Douglas and Catherine Zeta Jones sued for breach of confidence over their wedding photos for which they’d made a contract with OK magazine. Hello magazine obtained them.  They obtained an injunction against Hello which was then lifted. But both they and OK were awarded damages – though the OK damages were quashed on appeal.  Their case was basically one of privacy but they sued under the breach of confidence laws.  In the 1970s, the “Spycatcher” case involved a book which the government sought to suppress because of national security. It was, however, published throughout the rest of the world – so the damage had already been done.

DISCLOSURE OF CONFIDENTIAL SOURCES  Section 10 of the Contempt of Court Act gives protection to the public interest in allowing journalists to protect their sources.  It says we should not have to reveal confidential sources except in the interest of justice or national security or to prevent crime.  Clause 14 of the PCC Code – and the NUJ code – say we have a moral obligation to protect sources and that there are no circumstances, even public interest, which justify breach of this clause.  However, a judge or a tribunal chairman can order us to disclose.  Police officers will sometimes ask – we have no legal duty to provide our sources to them. They should apply to a judge for powers under the Police and Criminal Evidence Act (PACE).

IMPORTANT CASES  Trainee journalist Bill Goodwin of the Engineer magazine was ordered to reveal the source of a story about a firm in financial difficulties. He refused and was fined £5,000 for contempt of court.  Eventually, the European Court of Human Rights found in his favour saying protection of journalistic sources was a basic condition for press freedom.  In 2008 a case against a local journalist and a detective accused of leaking information to her collapsed because the police had bugged his car. This evidence was held to be inadmissable.  In 1983, the Guardian was ordered, on appeal, to return a leaked Government document. This led to the identity of the informant being revealed – she was convicted under the Official Secrets Act and jailed.