Confidentiality - Media Law Week 5

This week we were looking at the concept of ‘confidentiality’ within media law. There are three main areas within this topic: State Secrets, Commercial Secrets and Privacy.
State secrets are also known as official secrets, which will come from the military or intelligence operations for example. The law on state secrets is set out within the Official Secrets Act 1911. This contains schedules of secret information and revealing any information can lead to criminal prosecution. Reporting from a military base can be dangerous and lead to an Official Secrets Act breach because a story could give away (directly or indirectly) the disposition of troops.
In common law people have the right to keep secrets so long as this is not against the public interest. If a secret has been passed on when it has not been permitted to do so, the crime is called ‘breach of confidence’. An example of this is where a doctor passed on confidential information about you to a family member when you have given consent for such action to take place.
As journalists we may be inclined to provoke someone to reveal a secret, however if we do so and then publish the secret we may have committed a ‘third party breach of confidence’. ‘Confidentiality’ partly depends on the type of secret information at stake, and partly on the expectation of the person imparting the information that it will be kept a secret. The information being passed on must have the necessary quality of confidence to which it cannot be already known; it must have been provided in circumstances imposing an obligation; there cannot have been consent and detriment must be likely to be caused to the person who gave the information. These aspects must all be present in order for there to be a breach of confidence.
When starting some new jobs the employer will go through what is known as a ‘gagging clause’. A ‘gagging clause’ is a clause set out in the employment contract of an employee. It prevents the employee from discussing certain details considered important or sensitive with third parties. If someone has a ‘gagging clause’ they are taking a risk in speaking to a journalist about their company without permission.
Different professions require different amounts of confidentiality. Doctors have to keep all information, which patients have disclosed, to themselves. The only time they are permitted to share such information is if the patient has given their consent. If the doctor passes on information, for example, but they have not received consent then they are in breach of confidence. Journalists can also be guilty of a third party breach of confidence in this circumstance as well, if they have then published or broadcast the information, which was not consented.
Section eight of the Human Rights Act regards itself with privacy of family life. This is the third area to ‘personal secrets’. This clause mainly affects tabloid newspapers and celebrity journalism. We have a right to publish photographs of celebrities in various situations if we have consent and if there is a public interest, however if there is lack of consent we do not have the right to publish the photographs.
The next aspect of this topic is injunctions. An injunction is an equitable remedy in the form of a court order whereby a party is required to do or refrain from doing certain acts. In relation to journalism, a person or company can easily get an injunction to prevent a secret about them from being published or broadcasted. Injunctions are easily obtained because that person will say there is a danger of a crime occurring and the injunction will prevent that crime. Looking at it from a public view point, an injunction is a positive thing because once an injunction has been made against one media organisation, it is an injunction against all publishers.
The final aspect of this topic is celebrities and privacy. The rule regarding this is, if there is a picture of a person in your newspaper/TV station website, make sure you know who they are, what they are doing and whether they have consented to having their picture taken and published.