Tuesday, 13 December 2011

Law - Confidentiality & Privacy

Confidentiality and a breach of confidence is literally defined as the principle that a person who has obtained information in confidence should respect that and not use it as a major advantage. 

Governments use the breach of confidence idea to protect TOP SECRET information, and individuals use it to protect their private lives. For journalists, breach of confidence is vital because the main thing that can be introduced to prevent a breach of confidence is an injunction which stops the media from reporting and publishing any kind of information. 

Here are some examples of injunctions being imposed by celebrities, and how the court has overturned that injunction against the celebrity allowing the media to publish or report articles which they believe to be in the interest of the public. 
  1. http://www.telegraph.co.uk/sport/7102733/Judge-lifts-super-injunction-over-John-Terry-affair-with-team-mates-girlfriend.html - John Terry super-injunction
  2. http://www.dailymail.co.uk/news/article-1389841/Ryan-Giggs-named-Parliament-cheating-super-injunction-star.html - Ryan Giggs/Imogen Thomas super-injunction
There are three main elements in a breach of confidence:
  • the information must have 'the necessary quality of confidence' 
  • there must be an unauthorised use of that information to the detriment of the party who communicates it
  • the information must have been imparted in circumstances imposing confidence 
For journalists, they are third parties in terms of confidentiality but of course not in all cases, but in the majority of cases, journalists are third parties and therefore the information has been obtained indirectly. Journalists who realise the information is confidential and who come into possession of confidential files may have to respect the law and respect that confidence and its contents. 
A person who passes on the information to a journalist may have received that information in confidence. However, the media become affected because if the person who holds the confidence themselves discovers the intentions of the media to publish the confidential material, they can push for an injunction which can stop the release and publication of the confidential information, whether that be temporary or permanent. 

If the act of an injunction is disobeyed, then the result could be contempt of court and immediate action being taken. 

An obligation of confidence is is a contractual relationship meaning that people working for others have a contractual obligation to not reveal their employer's secrets. But, this is not a legal fact because in a sort of "unwritten law" it is suggested that an employee will not cause detriment to their employer's career or ethics. 

The main case for privacy is Princess Caroline of Monaco who worked to get an injunction on the paparazzi to stop taking photographs of her in her daily private life. Even though she lost the first case in court, she appealed and won her case for privacy. It is said that there is no logical reason to know the whereabouts of any person in their private life, regardless of how famous they are or not. 

If photographers or media want permission to film or take pictures of somebody in their private life they will need permission from the person wanted, and they will need consent, and in privacy, there are two types of consent. 

  • Implicit consent, which is getting the person involved looking directly at the camera so they know they are being filmed,r o if you wanted evidence of consent then get consent recorded on camera. 
  • Explicit consent, and this is the signing of a contract or some form of document. If you wanted evidence then this is useful because you will have written proof of their consent to record, film and take images of them. 

Although, despite this, Article 8 on privacy claims that "Everyone has the right to respect for his private and family life, his home and his correspondence. Privacy mainly affects magazines and tabloids as they are more based on celebrity and their private lives. You must have consent when filming someone or taking their picture."

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