BREACH OF CONFIDENCE 3/3/2016 1

What is Breach of Confidence? Spans several areas of law Intellectual property Tort (a civil wrong) Equity Based on principle that someone who has obtained information in confidence should not take advantage of it in an unfair manner. 3/3/2016 2

Journalists BEWARE If a media organisation publishes this type of info it needs a legal defence to avoid having to pay damages 3/3/2016 3

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 3/3/2016 4

QUESTION 4 5 3/3/2016

Conditions for confidence “obligation of confidence” Contractual relationship employees in companies, employees of celebrities, even if it is not stated in writing there is an expectation of confidence Personal Relationship Argyll v Argyll 1967 Duchess of Argyll prevented PEOPLE from publishing marital secrets her husband, the Duke of Argyll, had sold to the publication. Unethical Behaviour Journalists who obtain confidential information by unethical means (trespass, theft, listening devices or long range cameras) are USUALLY in breach of an obligation of confidence 3/3/2016 6

Privacy and Breach of Confidence 1848 Prince Albert, husband of Queen Victoria, used breach of confidence to prevent publication of sketches of their children and pets. Had been sent to printers for private collection. Until 2000, the UK didn’t have a specific law for privacy. People used breach of confidence law to protect themselves 2000 Human Rights Act 1998 came into force and incorporated the ECHR 3/3/2016 7

Elements of B of C Three elements that come from Coco v A.N.Clark (Engineers) Ltd [1969] R.P.C. 41 A claim was made for breach of confidence in respect of technical information whose value was commercial. Must have “the necessary quality of confidence” Must have been imparted in circumstances imposing an obligation of confidence There must be an unauthorised use of that information to the detriment of the party communicating it (original source) 3/3/2016 8

Remedies (prevent publication) 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 3/3/2016 9

The Douglas Case Michael douglas and Catherine Zeta jones had a 1 million pound deal with OK! Magazine to publish photos of their weeding. Hello! Mag got pics from a papparazi and printed them to win the scoop The Douglases sued Hello! Mag and won Hello! Paid 14,600 in damages to the couple plus 1 million to Ok! Breached privacy 3/3/

QUESTION 5 – A & B 11 3/3/2016

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 3/3/

Spy catcher case Peter Wright, book about his work at MI5. Security service employees have ABSOLUTE and LIFELONG DUTY not to reveal details of their employment. Guardian-Observer published bits of the book English court granted the Att Gen injunction to prevent publication 1988 after much deliberation the HoL ruled that the original articles were not in BofC USE BofC law rather than Official Secrets Avoid using a jury by using an injunction Established principle that ONE injunction covers all media 3/3/

QUESTION /3/2016

Ponting Case Clive Sheridan Ponting is a former senior civil servant, best known for leaking documents about the sinking of the Belgrano in the Falklands War. Jury found him not guilty because he should be protected if he was acting in “public interest” Useful to ‘manage’ news 3/3/

Effects of Human Rights Act SECTION 12 HRA FREDOM OF EXPRESSION 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 BENERJEE (2004) a 2004 decision by the House of Lords on the impact of the Human Rights Act 1998 on freedom of expression. Financial disclosure Cream Holdings provides the Court with the power to grant an injunction to “hold the ring” in a deserving case. Meaning of ‘likely’ – ‘more likely than not’ 3/3/

QUESTION /3/2016

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

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 Query - is public interest test needed if ART 10 FREEDOM OF EXPRESSION rights engaged? See Goodwin and comments of ECHR Remember Goodwin? Published Engineer Mag info about a company in trouble Got leaked information Called up company to check facts Injunction against publication + production of sources He denied and was found in contempt + 5,000 pounds 3/3/

The 3 stage test formulated by counsel in Ashworth Security Hospital v MGN Ltd (approved by HL) 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 3/3/

Journalist’s dilemma Obtain newsworthy info from a source who received the information confidentially Approach source and question it RIGHT OF REPLY – fair opportunity to respond to allegations Can use public interest defence 1984 Court rules Daily Express could published a leaked internal memo, about a company making breathalyzer equipment at a time when police were using it LION LABORATORIES v EVANS 1985 Correct a “false public image” Beckhams – 2005 denied an injunction against News of the World State of their marriage Info from former nanny about witnessing fights Newspaper said the Beckhams had portrayed a false image about how blissful their marriage was. 3/3/

QUESTION /3/2016

How the law has been developed against the media Used in serious cases – e.g.Venables & Thompson The Claimants, the convicted murderers of James Bulger, applied for indefinite injunctive relief to restrain publication of their new identities and their whereabouts. Claimed they would be in danger if people knew their ID’s Used ART 2 ECHR. RIGHT TO LIFE Upheld by court 3/3/

The development of the law & Art8 ART 8 PRIVACY 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 3/3/

QUESTION 6 His Royal Highness the Prince of Wales v Associated Newspapers Ltd [2006] EWHC 11 is an English legal case brought about when The Mail on Sunday published extracts of a dispatch by Charles, Prince of Wales, the heir to the British throne 25 3/3/2016