Confidentiality - Shhh. Do you mind?

Section 8 of the Human Rights act states that EVERYONE has a right to privacy and the right to enjoy a private family life.
So what does that mean for journalists... Who yes. Make a living of delving into your dirty laundry to share things that SHOULD be known. Unfortunately the law says that a person who has obtained information in confidence must not take unfair advantage of it. Which means that journalists have to be careful when taking information from a source.

In Mcnae's it is stated that, traditionally, there are three elements of a breach of confidence. These are:

+ The information muct have the 'necessary quality of confidence' - even though information can be freely used if it is in the public domain, if the information is obtained in a way that breaches confidence then it cannot be used.
+ The information must have been imparted in circumstances imposing an obligation of confidence - Where there is an obligation to keep information private then you cannot use that information freely.
+ There must be an unauthorised use of that information to the detriment of the part communicating it - The person to whom the confidence is owned must not suffer in any form of detriment.

A claimant must prove EVERY single point in order to prove a breach has been made.
In some cases a breach may not have been made but a claimant may worry about a possible breach. If he/she has reason to suspect that this is going to happen they can get an injunction from a court against the information to stop it from being published. These are usually expensive and time sensitive. Once the injunction has been placed then the case is usually argued in front of a judge.

The law of confidence basically protects companies, organisations or even individuals against information obtained in confidential circumstances. There are usually only three areas which a journalist should be concerned with:

•Revealing state secrets or ‘official’ secrets
•Revealing commercial secrets
•Revealing facts about a person they would have expected to remain private.

'Official secrets' are protected by the Official secrets acts and usually involve the military or intelligence. Be wary when using photo's of military proceedings. Although it is rarely used as a jury find it hard to shop a 'whistle blower'.
Commercial secrets are usually protected by employer contracts. It is unusual for an employee taking information about a company to use it in detriment to that company. However if a publication is balanced against public interest then the story proves to b desirable and therefore unconfidential.

Personal/ private
•Risk an injunction (legal stop) by seeking a response to the allegation

OR

•Publish material and take the risk of legal action for breach of confidence or possibly defamation is there is inaccuracy.

Gagging clauses.
In most cases employees owe their employees an confidence. A gagging clause is a clause (a condition) set out in the employment contract of an employee ( normally senior)
It prevents the employee from discussing certain details considered important or sensitive with third parties.
While designed to protect the company from damage caused by leaks which could impact on their share price (takeover plans, insider trading, negative forecasts) they have become known to be used in the prevention of whistleblowing.
Whistleblowing is when an employee brings to the attention of the public/media actions carried out by the organisation which may be illegal or contrary to the common good. (inflated prices, dangerous products, unsafe practices etc etc etc)
By gagging the employees they prevent such information from coming to public attention. Many countries are enacting pro whistleblowing legislation to counter gagging clauses in the wake of the various financial scandals.

However, once again we come back to public interest. If something SHOULD be known then it is a reporters responsibilty to share. In this case you must make the employee fully aware of what you are doing/ try to protect them.

If they are happy to continue... Don't argue... Just listen!

********* Important ***********

These are some important cases highlighting privacy and confidentiality.

Max Mosley v News of the World- In 2008 the News of the World printed a story about Max Mosley having an orgy with 5 women saying it had a Nazi theme and he was dressed as a Nazi. But the High Court ruled that there was no public interest in revealing this, so Mosley had a right of privacy and damages were awarded.

Naomi Campbell v Mirror Group 2004 - The Mirror had published a couple of photographs of Naomi Campbell leaving a meeting for Narcotics Anonymous and of course reported her as trying to get over a drug addiction. The House of Lords ruled there was a breach of confidence, that she could have expected privacy to be able to attend such a meeting as it is 'anonymous'.