Confidentiality and privacy

A breach of confidence occurs when the confident, the person who has been told the confidential material, abuses the confidential material.

There are three elements to a breach on confidence:

• The information must have 'the necessary quality of confidence'
• The information must have been imparted in circumstances imposing an obligation of confidence; and
• There must be an unauthorised use of that information tot the detriment of the party communicating it

This means that for there to be a breach of confidence the material must first be seen to be confidential and to have been obtained in confidential circumstances. Information that is seen as trivial is generally not confidential.

Certain situations create an obligation of confidentiality, a contractual relationship like one between employer and employee, will usually contain a confidentiality clause so that employees cannot reveal an employers secret. Employees in the security services may not have any contract but due to the nature of their work it is viewed that they have a duty of confidence because of the nature of their work.

Injunctions were introduced to prevent breaches of confidence. When a journalist obtains confidential material the journalist should contact the person, or as it is put in the BBC style guide they should be give 'the right to reply'. The issue with this is that this gives the opportunity for the person to obtain an injunction preventing the use of the information. This creates the 'Journalists dilemma' as McNae's calls it where a journalist has to make the decision if they should check the information and risk an injunction or publish and possible face libel damages.

Journalists do have a defence against injunctions in matters involving freedom of expression which comes under section 12 of The Human Rights Act. The confider, the person who has had their confidence breached, must show that it is likely that at trial it will be deemed that the publication should not be allowed. An injunction cannot be granted unless the journalist is not present when the application is made, unless it is deemed that the person seeking the injunction has taken all practicable steps to inform the journalist.

It is important to remember that an injunction against one is an injunction against all, so if one newspaper has an injunction against it not allowing it to publish confidential material if they are aware of the injunction, and if they do publish they can be guilty of contempt of court. This means that is up to the person seeking the injunction to persuade the court rather than the defendant, and the court must try to decide the likely outcome of the full trial.

Injunctions are not cheap and the fees can run into hundreds of thousands of pounds. The person who seeks and interim injunction must agree to pay any damages to the defendant if it is deemed at trial that the injunction should not have been granted.

The right to privacy is granted by article 8 of the human rights act, which says:

1. Everyone has the right to respect for his private or family life, his home and his correspondence
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society.
   -in the interest of national security, public public safety or the economic well being of the county
   -for the prevention or disorder of crime
   -for the protection of health and morals, or
   -for the protection of the rights and freedoms of others

To put it simply there are several exceptions to the rules on the grounds of public interest, there are :

1. deterring or exposing crime or serious impropriety
2. protecting the public health or safety, and
3. preventing the public from being misled by an action or statement of the individual or organisation

As it is with confidence, where information mist be seen to have the 'necessary quality of confidence', it is necessary to judge whether a person has a 'reasonable expectation of privacy'. If it is deemed that they do then to publish this information is a breach of confidence the person may obtain an injunction just like confidentiality.

The main thing to remember with confidentiality as a journalist is to weigh up the two sides of the dilemma, if you have confidential material and contact the confider before publication you rick an injunction and the story ending, but if you publish without contacting them then you can risk a libel case.