| Confidentiality and privacy | 9 |
Publishers and others who wish to reveal sensitive commercial, governmental or private information should be aware that publication of such information may be unlawful. The law of confidence protects information which is confidential to a person or a company. The UK courts have also applied the law of confidence to prevent the disclosure of private information. The law in this area has developed rapidly since the enactment of the Human Rights Act 1998 which brought in the right of privacy and the right of freedom of expression into UK law. This chapter first addresses confidential information before discussing the expanding area of privacy. One of the most important areas of growth relating to privacy is the law of data protection. This is put into context below and covered in more detail in Chapter 13.
There is a general rule of equity in English law that a person who receives information in confidence has a duty to keep that confidence and not disclose the information to others. Lord Denning put it well in a 1969 case when he said:
No person is permitted to divulge to the world information which he has received in confidence, unless he has just cause or excuse for doing so. Even if he comes by it innocently . . . once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence.
Are authors and publishers under a duty not to disclose or use information merely because it arrives on their desk in an envelope marked ‘Confidential’? What if it is a completely unsolicited proposal – a fairly common publishing event – from someone they have never met? That will depend (in that particular case) on whether the information is indeed confidential and whether, in the circumstances, a duty of confidence arises. You do not make information confidential simply by stamping ‘Confidential’ on it (although this may often point towards the information being so). The law will prevent the disclosure of confidential information where:
(1) the information is confidential in nature;
(2) a duty of confidence arises; and
(3) there is no overriding public interest in disclosure.
INFORMATION OF A CONFIDENTIAL NATURE
Information may be of a confidential nature where it is available to one person (or a group of people) and not generally available to others, provided that the person (or group) who possesses the information does not intend that it should become available to others. In Attorney-General v. Guardian Newspapers (1988) the court refused an injunction preventing publication in the UK of Peter Wright’s book Spy-catcher (the memoirs of a former MI5 officer), partly on the grounds that the book had already been published in Australia and become widely available. The information should also be more than trivial.
Plots and scenarios
In some cases, a plot or scenario may be protected if it was disclosed in confidential circumstances. W.S. Gilbert obtained an injunction in 1894 to prevent unauthorised publication of the plot of his new play His Excellency, which was then in rehearsal but had not opened, on the grounds that the people seeking to publish it knew it had been obtained in breach of confidence. Publishers and authors would similarly be prevented from re-using the key elements of a scenario – plot, characters, dramatic ideas – which had been submitted to them, but rejected, if it could be established that they had been submitted in confidence and accepted as such at the time. There may also be an action for breach of copyright in the case of more developed material.
Developed concepts
If an idea is less than a completed plot or scenario, how far must it be developed before it is protectable by the law of confidence? Hughie Green, in a famous case, failed to protect the general ideas and format behind his game show Opportunity Knocks because so little of his own format had actually been put into fixed or developed form, or even written down: there were, for example, no scripts as such. However, in the case of Fraser v. Thames TV (1983) a much more developed concept – a television series about a three-girl band – was successfully protected by an action for breach of confidence. In this case, the concept was clearly identifiable, commercially attractive, original (and was not, for example, public knowledge) and capable of being realised in actuality. In contrast, in De Maudsley v. Palumbo (1996), the claimant had an idea for a new nightclub which would open all night, have separate dance areas, an acoustic design and top DJs from around the world. The defendant subsequently opened the Ministry of Sound nightclub which had a number of these features. The claimant’s idea was held by the court to have been too vague and generally not novel enough to give the information the necessary quality of confidence to be protected. In order for an idea to be confidential, it must go beyond the identification of a desirable goal and needs a considerable degree of particularity.
The dilemma for an author who wishes to disclose information to a potential publisher is that if he only discloses an outline of the plot (while holding back essential detail), the information may not be detailed enough to be confidential. On the other hand, the more detail the author discloses, the more he has to take a risk that the publisher could decide (whether deliberately or not) to commission another author to write a book with the same plot. Whether information is confidential is ultimately a question which can only be answered by taking all the circumstances into account. To minimise the uncertainties of the law, it is desirable that publishers and authors have clearly worded written agreements which specify what information is confidential and the circumstances in which it can be disclosed.
OTHER TYPES OF CONFIDENTIAL INFORMATION
Many other kinds of information may be confidential, including business proposals and reports, customer lists, interim reports from investigations, government and state secrets, ideas for new designs and technology and other trade secrets. In fact, a lot of financial and business information which has not been published is confidential.
Draft reports and professional opinions are obviously confidential. In Sir Elton John v. Countess Joubeline (2001), information from a confidential draft of a barrister’s opinion, which had somehow been filched, was posted on a ‘gossip’ website. The opinion related to Elton John’s court case against his former accountants. The operator of the website created a link to the information from her home page. She was held liable for breach of confidence and the fact that the material was initially posted on the website without her knowledge was irrelevant once she became aware of it and allowed it to remain. She should have known that the information was confidential.
IS THERE A DUTY OF CONFIDENCE?
The circumstances in which a duty of confidence can arise are where:
• there is a relationship of confidence, as for example between husband and wife, or doctor and patient;
• there is a contractual duty of confidentiality, such as those included in many employment contracts or consultancy agreements; or
• the party receiving the information knows or ought to know that the information would be regarded as confidential by the party to whom the information relates.
CONFIDENTIAL RELATIONSHIPS
Clearly, there are some close relationships, such as that between husband and wife, which the law will automatically regard as relationships of trust: the Duchess of Argyll found in a celebrated case in 1967 that information communicated confidentially to her by the Duke while they were married could not be published in later divorce proceedings. This duty of trust has been held to apply to secrets disclosed in other close or long-standing, personal, professional or business relationships of trust. Examples of such relationships include confessions made to a priest, information disclosed to doctors (although the courts have decided that there is no breach of confidentiality where doctors reveal prescription details without revealing the identity of the patients), solicitors or bankers and their clients, and secrets shared between an employer and employee (particularly where the employee is relatively senior and has regular access to the employer’s trade secrets), partners of a firm or directors or shareholders of a company. It may well extend to ideas and other information disclosed by an author to his or her literary agent, but would not necessarily cover disclosures made to a publisher unless the author–publisher relationship was a fairly close or long-standing one. It would be unlikely to protect an unsolicited idea offered to a publisher by an author never previously dealt with: some other basis for protecting confidentiality would need to be found, such as a contractual agreement (see below).
Duties of confidence may be entered into contractually; for example, as part of a consultancy agreement, or disclosures of trade secrets made prior to a possible joint venture. Clearly, those seeking commercial backing for an exciting new idea will need to disclose at least some details of the idea in order to interest their potential partners, but they will only want to do so in circumstances of agreed confidentiality. A specific contract, usually known as an ‘NDA’ (non-disclosure agreement), is therefore often recommended – and is fairly common – in these circumstances.
The most common contractual obligations of confidentiality, however, arise out of contracts of employment. The general rule is that employees may not disclose confidential information acquired during the course of their employment, or use it for the benefit of others, either while they are employed or (usually more importantly) after they have left. For example, in HRH the Prince of Wales v. Associated Newspapers (2006), Prince Charles sought to stop the Mail on Sunday from publishing further extracts from his private journals from his overseas tours. They had been provided to the newspaper, via an intermediary, by one of Prince Charles’ employees in breach of her employment contract. The Court of Appeal, in finding for the Prince, noted the strong public interest in preserving the confidentiality of private journals and communications within private offices.
The test most usually adopted is: would people of ordinary honesty and intelligence recognise the information as the property of their employers and not their own to do with as they like?
In the publishing context, the kind of information covered would include lists of customers, contacts or suppliers, advance price lists, pricing structures or mark-ups, contract terms, royalties or other financial information and future publishing plans. Documents as well as more general information would be caught, but they need not be taken away in physical form – an employee who deliberately memorises a list of customers for use in a future job might still be prevented from disclosing that information later. These days, however, the most common breaches are where employees email the information to themselves or save the information on a disk or memory stick. All kinds of publishing employees may be covered, including editorial, marketing, production and finance staff, particularly those at senior levels. To reinforce the general rule, confidentiality clauses are often specifically written into employment contracts. A confidentiality clause was successfully used by Tony Blair and his wife Cherie Booth QC in 2000 in obtaining an injunction preventing the publication by the Mail on Sunday of extracts written about the Blairs’ family life by their former nanny, Rosalind Mark. It is, however, possible that in some circumstances where a contract of employment has been terminated as a result of a breach by the employer, the employee may be discharged from obligations of confidentiality under that contract. This was recognised as at least arguable in Campbell v. Frisbee (2002) where information from a former employee of Naomi Campbell, including information about alleged sexual encounters between Miss Campbell and the actor Joseph Fiennes, was published in the News of the World. However, even if an expressly assumed duty of confidence is found to be discharged on a serious breach of the employment contract, it is likely that a non-contractual duty of confidence may nevertheless exist.
For many employers, the greatest risk of disclosure of trade secrets comes when senior employees – such as marketing or other directors – leave to go to other jobs, or to set up on their own. For this reason, employment contracts for such staff often include restrictive covenants preventing the use of the firm’s confidential information in the future, or for a limited number of months. Such covenants restricting future behaviour need to be very carefully drafted: the wider and more restrictive their terms, the more likely it is that a court might find them to be void as being in restraint of trade (see Chapter 14). In the first place, the terms of such clauses will be strictly and narrowly construed against the person seeking to enforce them, so that, for example, an agreement not to ‘disclose’ company information will be just that, and may not prevent the employee from ‘using’ the information. Secondly, the information protected must truly amount to a trade secret of the firm. No employee can be prevented from using his or her general ‘know-how’ (often called ‘life skills’) in future jobs, even though that expertise will inevitably have been picked up in earlier employments. This is only reasonable – otherwise, as one judge put it, ‘no servant could ever advance himself’.
REASONABLE EXPECTATION OF CONFIDENTIALITY
In the absence of a contract, a duty of confidentiality may be implied from particular circumstances, even if there is no relationship between the person whose confidential information it is and the recipient of the information. The question often asked is: would a reasonable person, standing in the shoes of the recipient of the information, realise on reasonable grounds that the information was being given to him or her in confidence? In the case of Prince Albert v. Strange in 1849, the Prince Consort was granted an injunction preventing the publication, by an employee of their chosen printer, of drawings and etchings which had been produced by him and Queen Victoria. The employee had been entrusted with the plates and other materials for a limited printing only, and clearly knew this – any further disclosure would have been a breach of trust. This would apply to any similar information improperly obtained, such as private letters (see the section on privacy below). In the Australian case of Foster v. Mountford and Rigby Ltd (1976), adopting English law principles, the same implied duty of trust and confidentiality was held to apply to aboriginal tribal secrets disclosed to an anthropologist in the course of his research. The tribal elders showed him sacred sites, paintings and other objects, and shared secrets known only to male members of the tribe, and obtained an injunction limiting his right to publish them later in a book. The outcome might have been different if it had been clear to them from the outset that he was researching the information for publication in a book, but then he might not have been given the information.
A duty of confidence may arise where a person:
• is given confidential information from a person in circumstances where he knows or ought to know that a duty of confidence arises; or
• even if he is not given the information, he obtains or chances upon clearly confidential information in circumstances where he knows or ought to know that the information belongs to someone who can reasonably expect his or her confidential information to be protected. In this latter case, the person may have used surreptitious methods (such as a telephoto lens or listening device) to obtain the information or may have found a document in the street or been sent it anonymously.
Where information is conveyed in a social setting it is unlikely, in the absence of other factors, to give rise to an obligation of confidence on the part of the confidant. In De Maudsley v. Palumbo (1996) (see above), the claimant’s idea for a new nightclub was disclosed to a friend around the table at a dinner party. Nothing was said to change what was a social setting into an occasion where confidence could be expected to be maintained. Where it is expressly made clear that the information conveyed or to be conveyed is to be treated as confidential, an obligation of confidence is more likely to be created – even in a social setting.
The information itself and the circumstances in which the party comes by that information will be of relevance in determining whether the other party has a duty of confidence. Clearly labelling documents with words such as ‘private and confidential’ is also likely to point towards the information being so. In many circumstances in which someone finds or is the recipient of unsolicited information, it is obvious if the information is confidential. In Imutran Ltd v. Uncaged Campaigns Ltd (2001) the confidentiality of information regarding the claimant company’s research into xenotransplantation (the replacement of human organs with those of animals), sent on CD-ROM to the director of an animal rights campaign company, was never in dispute. The documents comprised laboratory reports, minutes of meetings and correspondence. Interim injunctions preventing further disclosures of the information were granted pending trial.
It is important to be aware of the risks of publishing information which is potentially confidential. It is possible that an injunction may be granted to prevent publication and/or that an action for breach of confidence could be brought. Both have significant potential costs and damages implications – not to mention the possible embarrassment and inconvenience of having to recall a publication at the eleventh hour. However, it is a defence to an action for breach of confidence if the information is being published in the public interest.
Traditionally, the legal principle applied has been that there is ‘no confidence in an iniquity’. This means that there is a public interest in the disclosure of crimes, misdeeds and fraud. However, the public interest defence only applies where the disclosure is to someone with a proper interest to receive the information.
In Lion Laboratories v. Evans (1984), former employees of the claimant gave information to the Daily Express newspaper that certain intoximeter devices were liable to error which was biased against motorists. The court refused to grant an injunction as it was in the public interest to know about this matter which was a serious question affecting the life and liberty of citizens. In contrast, where the Daily Mirror had obtained information by phone tapping that there were possible breaches of the jockey club rules by the jockey Johnny Francome, the court granted an interim injunction to prevent disclosure in the newspaper. It was held in Francome v. Daily Mirror (1984) that there was an arguable breach of confidence and although there might have been a public interest in disclosing the information to the jockey club or the police, there was no such interest in publishing the information in the media. What appealed to the public was not necessarily in the public interest.
Since the Human Rights Act 1998 has been in force, the right of freedom of expression is usually the starting point in considering the public interest defence.
ARTICLE 10 – FREEDOM OF EXPRESSION
Article 10 of the European Convention on Human Rights gives everyone the right of freedom of expression, including the right to impart information and ideas without interference from the state or public authorities (such as the courts). The right does, however, carry with it duties and responsibilities which make it subject to restrictions which are prescribed by law and necessary in a democratic society. One of these restrictions is for preventing the disclosure of information obtained in confidence, while another is to protect the interests of national security. It will therefore be up to the court to balance the right of those seeking to publish confidential information on the grounds that the disclosure is in the public interest against the right to stop such a publication under the law of confidence. The question is whether it is necessary in a democratic society to keep the information confidential or whether the public interest defence takes precedence. The court will ask whether the public interest in disclosure outweighs the public interest in keeping the information confidential.
The UK courts have upheld people’s rights of privacy by developing the tort of breach of confidence. Under the Human Rights Act 1998, the UK courts must not act incompatibly with the right of privacy enshrined in Article 8 of the European Convention on Human Rights. Article 8 gives everyone the right to respect for their private and family life, their home and correspondence.
There is an obvious potential for conflict between Articles 8 and 10 (the right to freedom of expression) and publishers and authors should be alert to the risks of an action for the misuse of private information.
The first question is whether the information is private. If it is, then the court must balance the right of freedom of expression against the right of privacy, bearing in mind the principle of proportionality (by which, the court should not go beyond what is necessary to achieve a reasonable and lawful result).
TYPES OF PRIVATE INFORMATION
To determine if information is ‘private’, the court will ask if the person in question can reasonably expect his or her privacy to be respected. The courts have noted that in many cases information is obviously ‘private’ in nature. This would include information relating to health, personal relationships and finances. Where the information is not ‘clearly’ private, the court may consider what a reasonable person of ordinary sensibilities would feel if he or she was placed in the same position as the person in question and faced with the same publicity. According to the European Court of Human Rights, private life includes a person’s ‘physical and psychological integrity’.
Relationships
Details of sexual relationships have been found to be a clear example of private information. In Mosley v. News Group Newspapers (2008), the court noted that anyone indulging in sexual activity is usually entitled to a degree of privacy, especially if it is on private property and between consenting adults (whether paid or unpaid).
Medical information
Medical information is private. This not only includes notes of and treatment by clinical practitioners but also non-clinical forms of therapy. In Campbell v. MGN Ltd (2004), Naomi Campbell’s therapy sessions at Narcotics Anonymous were held to be private and no less worthy of protection than treatment carried out by medical practitioners.
Daily life, home life and correspondence
Princess Caroline of Monaco was photographed during many day-to-day activities, a number of which were in public places. For example, she was captured shopping on her own, on horseback, on a bicycle, at a market, playing tennis, in a restaurant, skiing and tripping over an obstacle and falling down at the Monte Carlo Beach Club dressed in a swimsuit. The European Court of Human Rights in von Hannover v. Germany (2004) held the publication of those photographs represented an invasion of her privacy. Princess Caroline seemed to have been pursued relentlessly for many years by the paparazzi wherever she was and whatever she was doing. Thus there was a climate of continual harassment. In Murray v. Big Pictures (2008), for example, the English Court of Appeal noted that routine acts, such as a visit to a shop or a ride on a bus, could potentially attract a reasonable expectation of privacy, depending on the circumstances. In that case, the Court agreed that it was arguable that the writer J.K. Rowling’s infant son had a reasonable expectation of privacy that photos of him being pushed by his father down a street in a buggy, with his mother walking alongside, would not be published in the media.
Home (and family) life and correspondence have been recognised as being areas subject to privacy, as identified in the wording of Article 8. ‘Home’ would include certain aspects of a person’s business and professional premises and correspondence could include telephone calls made from business (and residential) premises. E-mails and text messages are also likely to be covered by the concept of ‘correspondence’.
PRIVACY IN FALSE INFORMATION
The essence of a privacy claim is whether the information is private, not whether it is true or false. The Court of Appeal has held that a claimant can succeed in a claim for misuse of private information which is false: McKennitt v. Ash (2006).
CAN PRIVATE INFORMATION BE PUBLISHED?
Once it is established that the proposed publication contains private information, the next question is whether or not publication should be allowed. This is answered by the courts in weighing up the conflicting right of the individual to privacy under Article 8 against the right of freedom of expression under Article 10. The right of freedom of expression is not only the right of the publisher and author but also of the person who wishes to tell their story and the right of the public to receive the information. In a kiss-and-tell situation, the court must balance the right of the kisser (who is usually selling their story) with the privacy of the other party (who is usually a celebrity).
Neither human right takes precedence over the other and publication will be allowed only where the Article 10 right outweighs the Article 8 right. In striking the balance, the interference with either right must not be impaired more than is necessary and proportionate in a democratic society.
In analysing the competing rights, regard will be had to the ‘public interest’ in publishing (or not, as the case may be). This is distinct from information which may merely be interesting to the public. There are a number of factors which will be of relevance when considering what is in the public interest, including the degree of intrusion caused by the disclosure, the position of the claimant and whether the disclosure reveals a wrongdoing which the public has a right to know about.
The claimant
The type of person the claimant is (in terms of their status) is of relevance because there is more likely to be a public interest in revealing private information about certain types of individuals. Information about political figures is more likely to be in the public interest than that about general celebrities, whilst information about celebrities is more likely to be of public interest than that about ordinary members of the public.
A distinction should also be made between those who actively seek publicity and those who do not. Those who seek publicity are less likely to be able to argue against publication of information of which they do not approve. In von Hannover v. Germany (2004), Princess Caroline, while undoubtedly a public figure, was not a person who had truly courted publicity and she did not fulfil a public function. Contrast this with celebrities such as the Beckhams, who can be said to have courted publicity. They failed to obtain an interim injunction to prevent the publication of the story of their former nanny, partly on the grounds that much information about them was already in the public domain and there was a public interest in publishing the information. In 2010, the footballer John Terry failed to obtain an interim injunction to prevent the publication of details of an alleged extra-marital affair, in part because he had given an interview to a national newspaper in the past in which he made statements about other relationships in which he had been involved, and as a consequence the court considered it unlikely that he found the information at issue particularly sensitive.
Generally, publication of private information relating to children will not be in the public interest. In Murray v. Big Pictures (2008) (see facts described above), the court held that it was arguable that children have a right to privacy distinct to that of their parents. As a result, the child of a celebrity may have a reasonable expectation of privacy even where his or her celebrity parent does not. In Weller v. Associated Newspapers (2014), three children of the singer Paul Weller successfully sued over publication of photographs of them in a MailOnline article entitled ‘A family day out’. The photos showed the children with their father on a shopping trip in the street and visiting a café in Santa Monica, California. The court held the children had a reasonable expectation of privacy and the balancing exercise fell in their favour. The court ordered damages of £5,000 to Weller’s then 16-year-old daughter and £2,500 each to his then 11-month-old twins.
Setting the record straight
Where the public have been either directly or indirectly misled as to the truth regarding an individual, the public is usually entitled to know the real truth. In Campbell v. MGN Ltd (2004), Naomi Campbell had previously indicated that, unlike other models, she did not take illegal drugs. This was in fact not the case and it later transpired that she was an addict. She could not complain, therefore, about publication necessary to correct the false image she had portrayed. However, in the court’s view the newspaper in this case went beyond what was proportionate and necessary to set the record straight when it published additional details of the treatment she was receiving and photographs of her leaving a therapy session. The principle of setting the record straight arose in Ferdinand v. MGN (2011). In that case, the footballer Rio Ferdinand brought a claim for misuse of private information against the Sunday Mirror in relation to an article disclosing an affair he had had. The claim was dismissed because, first, the claimant had previously stated he was a ‘reformed character’ and ‘the Defendant’s article showed that, at least as far as women were concerned, the image of change was a false one’. Second, in light of his role as the England captain, his conduct ‘could legitimately be used to call into question his suitability for the role’. Third, the photograph which was published with the article (showing the claimant and the woman wearing clothes in a hotel room, with the claimant speaking on a mobile phone) was unexceptionable in character and provided some corroboration for the story.
The subject-matter of the publication is an important factor in determining whether private information can be lawfully disclosed or not. Different types of information are generally accorded different weight. Political expression (as distinct from merely personal information about a political figure) is regarded as the most important form of expression to protect in a democratic society. Educational expression is next on the scale of importance and then perhaps artistic expression. ‘Gossip’ and private information published merely for commercial profit fall below artistic expression in terms of the extent to which protection of it is important.
Matters of public debate will more likely be in the public interest. So, for example, if there is a contentious new law proposed, it is more likely that it is in the public interest to publish private information which is of relevance to that new law about a political figure involved in the debate over the new law. Such information might include the individual’s conduct in private where they have publicly stated something in apparent contradiction to support their party’s policy. For example, if a politician is espousing the benefits of banning abortion and yet chooses to have an abortion herself, then it is more likely (but by no means certain) that the court may permit publication of the fact of the abortion. But publication of details about the abortion could be going too far. If it is an actress who has had the abortion, it is less clear why it is in the public interest for the fact of her abortion (private information) to have been revealed.
In Von Hannover v. Germany (No. 2) in 2012, the European Court of Human Rights (ECtHR) upheld the German court’s refusal to grant an injunction against publication of certain articles which referred to Princess Caroline being away on holiday while her father Prince Rainier was in ill-health. One of the photographs in issue showed her out walking during a skiing holiday in St Moritz. The German court held that the articles contributed to a matter of general interest and the photograph complained of was sufficiently connected to the article. There was no breach of Article 8. Similarly, in Von Hannover v. Germany (No. 3) in 2013, the ECtHR upheld the German court’s decision that a photograph showing Princess Caroline on holiday in the context of an article about the trend among celebrities of renting out their holiday homes was not a breach of Article 8. The article contributed to a debate of general interest.
Photographs represent a special category of information which the courts regard as particularly intrusive when published. As such, publication of photographs of a person in a private situation is likely to impair a person’s right to privacy more than is necessary and proportionate. The reason behind this approach seems to be that photographs have a more immediate, intrusive and long-lasting impact than a verbal description.
In Theakston v. MGN Ltd (2002), the court held that there was no breach of confidence in the newspaper printing details of the claimant’s activities in a brothel but an injunction would be granted to prevent publication of photographs of the activities since the photographs were particularly intrusive. In Campbell v. MGN Ltd (2004), the newspaper’s publication of information, including photographs of the model leaving a therapy session for a drug addiction, was too intrusive (words having adequately corrected her false public image). In Douglas v. Hello! (2005), which concerned unauthorised and surreptitiously taken photographs of the wedding of Michael Douglas and Catherine Zeta-Jones, it was recognised that a person viewing the photographs in Hello! magazine would be in a position of a spectator of the wedding or, as one member of the Court of Appeal remarked, ‘in some cases voyeur would be the more appropriate noun’. In Murray v. Big Pictures (2008), the court took into account the fact that the photographs of famous author J.K. Rowling’s infant son were taken deliberately, in secret and with a view to their subsequent publication, no doubt in the knowledge that the parents would have objected to them. In Weller v. Associated Newspaper (2014), publication of photographs of Paul Weller’s children on a shopping trip with their father amounted to misuse of private information.
REMEDIES FOR BREACH OF CONFIDENCE AND PRIVACY
In actions for breach of confidence, including privacy cases, the claimant may be entitled to several forms of remedy.
INJUNCTIONS
An injunction will often be the most important remedy to the claimant as it could prevent publication (or re-publication) of information giving rise to the action. The injunction could even be broad enough to cover the whole world, as was the case in Venables v. News Group Newspapers (2001), where an injunction was imposed preventing the disclosure of information leading to the identity or future whereabouts of the killers of James Bulger. Injunctions are always discretionary. Before publication, a claimant may apply for an interim injunction pending trial. At trial, the claimant can apply for a permanent or final injunction. Section 12 of the Human Rights Act 1998 sets out that, when a court is considering whether to grant relief which might affect freedom of expression (such as an injunction), relief should not be granted to restrain publication before trial ‘unless the court is satisfied that the applicant is likely to establish that publication should not be allowed’. Furthermore, section 12 expressly requires that the court must ‘have particular regard to the importance of the Convention right to freedom of expression’ and that, where the material is journalistic, literary or artistic, the court should have regard to the extent to which the material is, or will become, available to the public and any potential public interest in publication, together with any relevant privacy code (e.g. the Editor’s Code). As one example in a publishing context, in 2010 the BBC was not granted an interim injunction blocking the publication of an autobiography by Ben Collins, the man who had played ‘The Stig’ on Top Gear. This was because Mr Collins’ identity had already been revealed in the media and so it was no longer confidential information. The judge commented that, ‘for all practical purposes, anyone who would have any interest in knowing the identity of The Stig now knows it’, and in these circumstances publication of the autobiography would not cause any further harm to the BBC.
In practice, the Court of Appeal indicated in Douglas v. Hello! (2005) that, in future, pre-publication injunctions to prevent the disclosure of private information pending trial are more likely to be granted than had previously been the case in order to provide a claimant with an effective remedy. There is no guarantee that a claimant will be awarded an interim injunction. In 2008 Max Mosley failed to get an interim injunction in relation to edited video footage of sexual activities in which he had been involved that were available on the News of the World website. This was primarily because the footage had been so widely viewed and disseminated that there was ‘in practical terms, no longer anything which the law can protect’ (the footage on the website was viewed approximately 1.4 million times in two days, and had been copied on to other websites). Although no interim injunction was ordered, Mr Mosley went on the win damages at trial. In 2010, the court refused to grant an interim injunction to the footballer John Terry over the publication of information about a personal relationship. This was, in part, because the court felt that the nub of the claim was to protect Mr Terry’s reputation, in particular with sponsors, rather than his private life.
It is important to be aware of the risk of an injunction preventing a planned publication at the eleventh hour. This may have significant consequences financially and in terms of a publisher’s reputation. Whilst newspapers and magazines may have a reserve article to use, the financial consequences for a book publisher are likely to be more severe as the book may have to be pulped.
Damages for a tort, including breach of confidence, are to put the claimant in the position he or she would have been in had the tort not been committed. In ‘classic’ confidentiality cases, such as where a trade secret is revealed by a former employee, damages would reflect the loss to the employer caused by the disclosure of the secret, provided that damage was reasonably foreseeable.
In privacy cases, the calculation of the loss suffered by the claimant is often hard to quantify in monetary terms. Damages have, however, been awarded for distress caused by the invasion of the claimant’s privacy, although this is often a relatively small sum. In Cornelius v. de Taranto (2001), the disclosure of medical information about the claimant by a consultant psychiatrist to another psychiatrist and the claimant’s GP and solicitor, resulted in damages of £3,750. The nature and detail of the information disclosed, the character of the recipients and the extent of the disclosure were said to be material factors in assessing the true degree of injury to the claimant’s feelings.
In Adeniji v. London Borough of Newham (2001), photographs of a child (taken without parental consent) which were used in a brochure advertising services offered by the defendant gave rise to damages of £5,000. The photographs were used in relation to titles including ‘The strategy for children and young people who are infected by HIV or AIDS’ but the child was not herself infected with HIV or suffering from AIDS.
In cases of commercial publication of private information, one might expect damages to be much higher but this has not usually been the case. In Campbell v. MGN Ltd (2004), Naomi Campbell was awarded £2,500 general damages plus £1,000 aggravated damages for distress and injury to feelings occasioned by the invasion of her privacy by the newspaper for publishing details of her treatment for drug addiction. In Douglas v. Hello! (2005), the award for distress caused by the invasion of privacy by unauthorised photographs of their wedding was £3,750 for each of the couple. They also received £7,000 jointly for the expenses and disruption caused by having to select the authorised photographs to be published in OK! (with whom they had an exclusive contract) ahead of the planned publication date, and nominal damages of £50 each for breach of the Data Protection Act 1998, making a total damages award to the Douglases of £14,600. However, Hello! magazine was ultimately ordered to pay OK! magazine £1 million for scooping the latter’s exclusive, which was held by the House of Lords to be a breach of the confidentiality in the photographic images of the wedding. In Mosley v. News Group Newspapers (2008), Max Mosley was awarded £60,000 in damages to compensate him for the injury to feelings and the embarrassment and distress caused by the News of the World’s print and online publication of details and footage of sadomasochistic and sexual activities in which he had been involved. The judge in that case held that it would not be right to extend exemplary damages (i.e. an additional damages award to punish or deter the defendant) to privacy cases. Three of Paul’s Weller’s children were awarded a total of £10,000 over publication of photographs of them out shopping with their father in Santa Monica (see above).
Where the defendant has benefited from a breach of a duty of confidence or privacy, the claimant may elect to receive an account of the defendant’s profits attributable to that breach as an alternative to damages. It is at the discretion of the court whether to award such an equitable remedy. An account of profits is more likely to be awarded where the defendant has not acted innocently (e.g. by deceptively obtaining the confidential information or deliberately taking a free ride on the confidential or private information to sell more copies). In Douglas v. Hello! (2005), the Court of Appeal indicated that had Hello! made a profit as a result of the breach of confidentiality, they would not have hesitated in awarding the couple an account of profits.
DELIVERY UP
At the court’s discretion, material containing information in breach of confidence may be ordered to be delivered up or destroyed. Those involved in publishing should be aware of the costs and impracticalities involved.
COSTS
Although not strictly speaking a remedy for a breach of confidence or invasion of privacy, it is important to note that the loser in litigation is normally ordered to pay a contribution (usually about 50–80 per cent) of the winner’s costs. In most recent cases, costs have significantly outweighed the damages awarded, with costs often running well into hundreds of thousands of pounds and sometimes into the millions. Thus in financial terms, the risk to a publisher of fighting a privacy action often comes down to costs. Further risk to the defendant can arise where the claimant’s solicitors work under a conditional fee agreement, whereby they may not charge their client any fees if the case is lost, but agree a percentage uplift (currently up to 100 per cent) of their fees for a ‘successful’ outcome. In rough terms, this is a no-win-no-fee agreement. Naomi Campbell’s solicitors acted under a conditional fee agreement in her House of Lords appeal against the Daily Mirror. For more on conditional fee agreements see Chapter 8.
Whilst it has become harder for a claimant to succeed in a defamation claim in England in light of the Defamation Act 2013, this has been balanced by the increasing importance of data protection law in a publishing context. Claims for misuse of private information are now routinely joined by a claim for breach of the Data Protection Act 1998. If a data controller is processing personal data even in a publishing or editorial context, then data protection law potentially applies. This gives the data subject various rights including, in brief summary, a right to ask the data controller to stop or not to begin processing his or her personal data if this causes substantial distress and is unwarranted and to correct inaccuracies. Publishers, including the media, will try to rely on the ‘journalistic exemption’. This applies to processing personal data with a view to publication of any journalistic, literary or artistic material. For the exemption to apply, the data controller must (amongst other things) reasonably believe that publication would be in the public interest. In most cases, data protection law in a media context will be co-extensive with privacy law.
Data protection law is explained in more detail in Chapter 13.
PRIVACY AND CONFIDENTIALITY IN THE AGE OF SOCIAL MEDIA
The growth of the Internet has brought privacy and confidentiality into sharp focus. Social media such as Facebook and Twitter (to name but two of the most well-known) and other online services like Google Maps Street View have led to considerable debate in the media about an individual’s right to privacy. They have also highlighted the inherent tension between the rights of privacy (including data protection law) and freedom of expression, the latter being, after all, one of the driving forces behind much online activity and social media.
The privacy and confidentiality principles regarding information on the Internet are the same as set out above (see Chapter 13 for more on data protection law). For publishers, one particular issue to be aware of in an online context is a kind of court order called the Norwich Pharmacal order, named after a case of that name. This kind of order requires a respondent, such as a publisher, to disclose certain documents or information to the applicant. In an online context, the applicant will often want to know the identity of a particular anonymous poster or blogger who it believes is a wrongdoer. A publisher can generally decline any such voluntary request for disclosure until there is a court order in place. Indeed, disclosing the information other than in accordance with a court order could potentially give rise to privacy, confidentiality or data protection issues for the publisher.
LINKING
The potential risks with linking to defamatory content are discussed above (see p. 222). A linker could potentially, in certain circumstances, be liable for linking to material that breaches privacy or confidentiality. While there is no English case law directly on this issue, the analysis of when a linker could be held liable is likely to be the same as for defamation. If the main purpose of the link is to disseminate or refer readers to the unlawful material, then the linker is more likely to be found liable.
Another aspect of EU data protection law which relates to privacy is the so-called ‘right to be forgotten’. In summary, this permits a person to ask an Internet search engine, such as Google, to disable search particular results and links. The search engine must carry out a fair balance between the legitimate interests of users in having access to the information and the data subject’s rights to privacy and data protection. If the balance favours the data subject’s position, the search result and link must be removed, although the underlying article is not affected. The claimant risks bringing attention to the matter he was trying to get forgotten. The leading case is Gonzalez v. Google Spain (2014) from the Court of Justice of the EU. See Chapter 13 for more detail on data protection law.
The Freedom of Information Act 2000 (which came fully into force in 2005) allows individuals and businesses to access information held by public authorities and it can potentially represent a significant commercial opportunity for businesses to find out more about their competitors’ tenders and contracts with public bodies. Similarly, it offers the media the chance to discover more information about decisions taken in government, as illustrated by the parliamentary expenses scandal in 2009 which was triggered by Freedom of Information Act requests.
However, in many respects we still live in a secret society. Civil servants are required under the Civil Service Management Code not to publish or broadcast personal memoirs reflecting their experience in government, or enter into commitments to do so, whilst in Crown employment. Upon leaving the service, permission from the head of the former civil servant’s department and of the Home Civil Service must be sought before entering into commitments to publish such memoirs.
Under the Official Secrets Acts of 1911 and 1989 it is an offence to publish several categories of official government or state information if publication may be prejudicial or damaging to the safety or interests of the state. In practice, this tends to affect investigative newspaper and TV journalists more than book publishers, but memoirs of former civil servants, especially those involved with the security services and members of the armed services, can often run a serious risk of legal action. This may not only be prosecution under the Official Secrets Acts, but also civil action for breach of government confidentiality. These matters came to the fore in the Spycatcher saga in the 1980s, and in the David Shayler affair (both discussed below). It remains to be seen whether the activities of online ‘leaks’ websites, such as that operated by WikiLeaks, will be affected in practice by the Official Secrets legislation.
THE 1911 ACT
Although intended to apply to the spying activities of foreign enemy agents, section 1 of the 1911 Official Secrets Act still makes it an offence if any person for any purpose prejudicial to the safety or interests of the State:
• approaches, inspects, passes over or is in the neighbourhood of, or enters any prohibited place within the meaning of the 1911 Act;
• makes any sketch, plan, model or note which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy; or
• obtains, collects, records or publishes, or communicates to any other person any secret official code word, or password or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy.
A ‘prohibited place’ might include an aircraft, a vessel or a power station, as well as more obvious military establishments, and an ‘enemy’ may include potential as well as actual enemies of the UK. ‘Any person’ might in theory include internal saboteurs or even journalists and authors, but the section has not successfully been used against non-spies, and an attempt by the Attorney-General in 1978 in the ‘ABC’ case to prosecute Time Out journalists Duncan Campbell and Crispin Aubrey under section 1, for a story including security revelations by a former soldier, was thrown out by the trial judge as being ‘oppressive’ (they were given lighter sentences under section 2 – now replaced by the 1989 Act).
THE 1989 ACT
Offences under the 1989 Act are largely broken down to those most likely to be committed by ‘insiders’ (the primary offences) and those most likely to be committed by ‘outsiders’. In brief, the primary offences relate to disclosures of classified material, without lawful authority, by intelligence officers, members of the security services or Crown servants. The latter ‘outsider’ category is of most relevance to publishers and authors. There are specific classes of restricted information in the 1989 Official Secrets Act. They include, among others:
• security and intelligence,
• defence,
• international relations,
• information which might facilitate a criminal offence or impede its detection or prevention.
In relation to ‘outsiders’, such as publishers, authors and journalists, it is an offence to disclose, without lawful authority, information which they know or have reason to believe is protected from disclosure by the primary offences. In most cases the prosecution will need to prove that the disclosure would be damaging, e.g. to the security services or to the interests of the UK. Exactly what constitutes ‘damaging’ in this case will depend upon the type of information. The prosecution also needs to prove that the defendant knew or had reason to believe that publication would be ‘damaging’. The offence is only committed by a disclosure of classified material. Therefore reading, receiving or hearing the information is not an offence in itself under the 1989 Act. Only disclosures which are carried out in the UK or certain other territories or by a British citizen or Crown servant are caught. Therefore, if the disclosure is outside the UK, it is only caught if the disclosure was by a UK citizen or Crown servant.
There are a number of other offences under the 1989 act, including, in summary:
• Disclosure of any information, document or article that the defendant knows, or has reasonable cause to believe, has come into his or her possession as a result of a breach of section 1 of the 1911 Act;
• Failure to comply with an official direction by a Crown servant or government contractor to return or dispose of classified information;
• failure to take reasonable care to prevent an unauthorised disclosure of any document or article which it would be an offence to disclose; and
• Disclosure of any information, document or other article which can be used for the purposes of obtaining access to any information, document or other article protected against disclosure by the 1989 Act.
In 2002, the House of Lords, in upholding the decisions of Mr Justice Moses and the Court of Appeal, held in the David Shayler case that the provisions of the 1989 Act did not breach Article 10 (freedom of expression) of the European Convention on Human Rights, as enshrined in the Human Rights Act 1998. Shayler, a former MI5 officer, was charged with passing documents and information to the Mail on Sunday in 1997, which disclosed, among other things, that the agency kept files on a number of Labour ministers. The judge held that the 1989 Act did not permit a defence that a disclosure was ‘necessary in the public interest to avert damage to life or limb or serious damage to property’. The ban on disclosures by members or former members of the security and intelligence services was ‘necessary in a democratic society, in the interests of national security’, and was therefore compatible with Article 10.
In contrast, in 2000, the Guardian and the Observer successfully fought broad court disclosure orders obliging them to hand over e-mails sent to them by Shayler. In the absence of ‘compelling evidence’ that they were in the public interest, the High Court quashed the orders made by an Old Bailey judge, with Lord Justice Judge holding that they ‘would have a devastating and stifling effect on the proper investigation of the Shayler story’. Interestingly, in the same month that the Court quashed the disclosure orders, the Home Office approved for publication Shayler’s ‘gritty thriller about spies, sex and football’, The Organisation, written while in exile in France, without a word being cut.
BREACH OF GOVERNMENT CONFIDENTIALITY
Juries are not always as willing as governments would like to convict under the Official Secrets Acts, and where diaries or memoirs are concerned civil actions for breach of confidence have been used to try and stifle publication on the grounds that every minister or government employee has a duty not to reveal government secrets. The confidentiality principles covering government secrets are the same as those set out above. An injunction might be granted if there is still a risk to national security. However, Jonathan Cape Ltd was allowed to proceed with publication of the Crossman Diaries in 1975 on the grounds that by then the revelations were too old to be dangerous.
The Attorney-General was more determined in 1985 and 1986, however, when attempting to suppress publication of former MI5 officer Peter Wright’s memoirs, Spycatcher. While proceedings for breach of confidentiality were under way in the Australian courts, several UK newspapers began to publish extracts. In a succession of actions, the government obtained interim injunctions against the Guardian, Observer and Sunday Times but meanwhile the book was published in Australia and became freely available throughout the rest of the world. The House of Lords finally lifted the injunctions in 1988 on the grounds that there could no longer be any public interest in suppressing ‘secrets’ that had become so widely public. As a final humiliation, the European Court of Human Rights later ruled that maintenance of the injunctions after general publication had taken place was an infringement of the right to freedom of expression contained in Article 10 of the European Convention (now encoded in the Human Rights Act 1998).
Where there has been a breach of an undertaking of confidentiality, the claimant (in these cases, the Crown) may be entitled to an account of profits in exceptional circumstances – rather than the more usual remedies of compensatory damages, specific performance and injunctions. In Attorney-General v. Blake (2000), the House of Lords held that the Attorney-General was entitled to the money that remained payable (around £90,000) by Jonathan Cape Ltd to former secret agent George Blake under their publishing agreement. The ‘exceptional circumstances’ in that case included the fact that Blake – who was described by Lord Nicholls as ‘a notorious, self-confessed traitor’ – had ‘deliberately committed repeated breaches of his undertaking not to divulge official information gained as a result of his employment’ and had ‘caused untold and immeasurable damage to the public interests he had committed himself to serve’.
DSMA-NOTICES
The Defence, Press and Broadcasting Advisory Committee was set up after the 1911 Official Secrets Act to issue Defence Advisory notices, or DA-notices (previously called D-notices and then DA-Notices) to the media, to advise on both general policy matters (there are currently five) and on the security implications of publishing particular pieces of information.
The latest iteration is the Defence and Security Media Advisory (DSMA) Notice System which
is a means of providing advice and guidance to the media about defence and counter-terrorist information the publication of which would be damaging to national security. The system is voluntary, it has no legal authority and the final responsibility for deciding whether or not to publish rests solely with the editor or publisher concerned.
The areas covered include military operations, weapons, ciphers and secure communications, sensitive installations and home addresses and security and intelligence services and special services (see www.dsma.uk for details).
SUMMARY CHECKLIST: CONFIDENTIALITY AND PRIVACY
Confidential information
• Is it proposed that information of a confidential nature be published?
• Is the information generally available to the public?
• Does a duty of confidence exist in relation to that information:
– by way of a relationship of confidence;
– by way of contract; or
– through the recipient’s knowledge that the information would be regarded as confidential by the person to whom the information belongs (or where the recipient ought to know)?
• If so, is there an overriding public interest reason why the confidential information should be published?
Private information
• Is the information private? Consider:
– Does the claimant have a reasonable expectation of privacy?
– Obviously private information includes health, personal relationships and sex life;
– How would a reasonable person of ordinary sensibilities feel if he or she was placed in the same position as the person in question and faced with the same publicity?
• If so, is the benefit of publication proportionate to the harm done by the violation of individual’s right to privacy? Consider:
– The type of individual to whom the information relates;
– Whether publication would set the record straight;
– The subject-matter of the publication (including whether it is a matter of public debate);
– Whether the publication of photographs is necessary to convey the information.
• Is personal data being processed? If so, does the exemption for journalistic and literary material apply? If not, all the data protection principles must be complied with (see Chapter 13).
• Finally, give thought to the practicality of having to withdraw and/or replace the publication if an injunction is granted, and to the potential costs involved in legal proceedings, should they arise.
Additional considerations:
• Could publication be an offence under the Official Secrets Acts?
• Are any DSMA-notices relevant in relation to a proposed publication? If so, consider contacting the DSMA for guidance.