Personal commentary on privacy, confidentiality, and data protection:
This area of law has been developing fairly rapidly – largely thanks to the significant impact of the Human Rights Act 1998 – as well as judgements made in the European Court of Human Rights.
The main focus of this week’s blog is to explore the principle of confidentiality, expectation of privacy, and our rights as journalists regarding sources. Perhaps the most crucial of these principles is the requirement to balance interests: even when there is a strong public interest in uncovering the identity of a source, the vital function of the protection of sources in a democracy should not be overlooked.
Journalists must not take unfair advantage of information, released to them in confidence, unless given permission – incase of risk of being sued (or breach of ethical behaviour). Although it is normally journalists who claim the right of information, it is really the right of everyone to receive information and ideas that is being protected. Indeed, this is at the heart of the right and it is for this reason that the Freedom of Information Act 2000 exists. The Act covers any recorded information that is held by a public authority in England, Wales and Northern Ireland, and by UK-wide public authorities based in Scotland. (Information held by Scottish public authorities is covered by Scotland’s own Freedom of Information (Scotland) Act 2002).
Protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. The right of a journalist is to protect the confidentiality of their source(s).
The case of Bill Goodwin (1989) is a good place to start when looking at the protection of sources. Goodwin was a trainee journalist with ‘The Engineer magazine’ and received information regarding the financial status of a company. The information was given by telephone from a source who wished to remain anonymous and appeared to come from a confidential corporate plan, one copy of which had gone missing.
The company obtained orders preventing Goodwin from disclosing the confidential information and for delivery up and, under Section 10 of the Contempt of Court Act 1981, an order compelling him to divulge the identity of his source. Goodwin appealed unsuccessfully to the Court of Appeal and House of Lords and refused to disclose his source. He was fined £5,000 for contempt. This was a singnificant decision on the protection of journalists’ sources. Goodwin complained of a violation of Article 10 of the Convention. In 1996, the European Court of Human Rights ruled in Goodwin’s favour to protect his source and the case was hailed a victory for investigative journalism.
This is a strong example of a journalist rightly protecting their source. The Human Rights Act 1998 says a court must consider whether there’s a public interest in a publication. This was not the case when considering the dispute between Max Mosley Vs. News of the World. In 2008 the News of the World printed a story on Mosley’s ‘sado-masochistic orgy with five women’ saying it had a “Nazi theme”. But the High Court ruled that there was no public interest in revealing the activities, so Mosley had a right of privacy and damages were awarded. Privacy is now protected under Article 8 of European Convention on Human Rights.
In the news:
In the news today (11th February 2015), Government Communications Headquarters’ former legal director, Michael Drury, has admitted that journalists’ communications with their sources were barely considered when the Regulation of Investigatory Powers Act was drafted. The Bureau of Investigative Journalism is currently challenging the British government in the European Court of Human Rights in connection with its surveillance activities.
Last week a report by the Interception of Communications Commissioner found that the police had failed to give “due consideration” to Article 10 rights when applying for warrants to intercept journalists’ communications. The Commissioner recommended that judges should approve interception requests in cases where officers are seeking to discover journalists’ sources.
This story offers an interesting debate around arguments of surveillance and “public safety” vs. privacy.
To round up:
Journalists need to ask themselves two questions: Have we a defence against the publication of clearly confidential material? Have we a defence against demand to reveal our source?
Law Notes: Confidentiality: breach of confidence and privacy
Law of confidence safeguards information obtained in confidential circumstances (e.g. between private individuals or between a company and its employees).
For journalists there are three main areas of concern:
- Revealing facts about a person they would have expected to remain private.
- Revealing commercial secrets.
- Revealing state secrets or ‘official’ secrets.
Revealing state secrets or ‘official’ secrets:
The Official Secrets Act 1989 protects state secrets (military or intelligence matters). Journalists must beware of inadvertent breach by publishing photos of sensitive military installations. Breaches are a criminal offence. The act is rarely used as juries have been reluctant to convict ‘whistleblowers’ or others who can be ‘victims’ of the state.
Commercial confidentiality is normally protected by the contract of employment. Staff won’t do things detrimental to their employer’s interests (e.g. reveal finance information helpful to competitors). Interest must always be balanced against the public interest which might dictate that publication is desirable.
Personal confidences or privacy:
Privacy is now also protected under Article 8 of European Convention on Human Rights.
Elements of breach of confidence
- Information must have ‘quality of confidence’ (i.e not trivial).
- Circumstances must impose ‘an obligation of confidence’.
- Unauthorised use of the information must cause ‘detriment’.
Defences against breach of confidence
- Information doesn’t have ‘quality of confidence’; is trivial; no detriment.
- Already in public domain.
- In public interest to publish (e.g. exposes wrongdoing, negligence or hypocrisy).
Breach of confidence and the journalist’s dilemma
Journalists must decide when newsworthy confidential information is uncovered to either:
- 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.