Wednesday, 10 November 2010

'Law for Journalists' - Chapter 23 to 33 Raw Notes

Breach of Confidence

Elements of a breach of confidence:

Mr Justice Megarry, giving judgement in 1968, said there are three elements in a breach of confidence:
  • The info must have 'the necessary quality of confidence'
  • The info must have been imparted in circumstances imposing an obligation of confidence
  • There must be an unauthorised use of that information to the detriment of the party communicating it
Obligation of Confidence

An obligation of confidence can arise in a variety of ways:

Contractual relationship – The most frequent is a contractual obligation. People working for others may have signed a contract to say that they will not reveal their employer's secrets, but even if they not there is an implied term in every contract of employment that the employee will not act in a way detrimental to the employer's interests

Disclosure – Under the process of disclosure in legal proceedings, parties have to disclose relevant documents to the other side.

Third parties, such as a journalist – The information may have been obtained indirectly from the confider. A third party, such as a journalist, who come into possession of confidential information and releases it is confidential may come under a legal duty to respect the confidence

Unethical behaviour – it was once considered doubtful whether an obligation of confidence could arise when information is acquired through unethical behaviour, because of the reprehensible means used.

The party communicating – By 'the party communicating it' is meant the person communicating the information originally, that is, the person to whom the confidence is owed.

But how are the media affected?

Injunctions – A person who passes information to a journalist may have received it confidentially. If the person to whom the confidence belongs discovers, before the paper is published or the programme is broadcast, that the information is to be disclosed, he/she can try to get a temporary injunction prohibiting publication of the confidential material

Fines – Disobeying an injunction can result can result in an action for contempt of court. The News of the World was fined £10,000 for publishing a story headlined 'Scandal of Docs with AIDS'

Order to reveal source – A court can order a journalist to reveal the name of his informant, as happened in the Bill Goodwin case

Delivery up – A court can order that confidential matter be 'delivered up' or destroyed

Account of profits – A person misusing confidential information to make money may be asked to account for the profits to the person who confided the information, i.e. the person whose confidence was betrayed.


Article 8 of the Convention: The wording of the article suggests it gives protection for privacy only against a 'public authority', but in fact it gives protection also against the media because under the Act a court in the UK is a public authority and must take into account of the judgements of the European Court of Human Rights


If a journalist is using copyright letters, other documents, or photographs snatched from a family album there is the possibility of an action for infringement of copyright.

The Ofcom code and privacy:

Private lives, public places – Broadcasters should ensure that words, images, or actions filmed or recorded in, or broadcast from, a public place, are not so private that prior consent is required before broadcast from the individual or organisation concerned, unless broadcasting without their consent is warranted

Surreptitious filming or recording:

Surreptitious filming or recording should be used only where it is warranted, and normally it will be warranted if:
  • There is a prima facie evidence of a story in the public interest
  • There are reasonable grounds to suspect that further material evidence could be obtained
  • It is necessary for the credibility and authenticity of the programme
The Local Government Act 2000

When cabinets meet in public:
  • A cabinet meeting must be held in public when a key decision is to be made. A key decision means one that is likely:
  • to result in the local authority incurring expenditure or making savings that are significant having regard to the local authority's budget for the relevant service or function, or
  • to be significant in terms of its effects on communities living or working in an area comprising two or more wards
Papers that must be available

'As soon as reasonably practicable' after a cabinet meeting, either in private or public, at which an executive decision has been made, a written statement must be produced. The statement must include:
  1. A record of the decision
  2. A record of the reasons for the decision
  3. Details of any alternative options considered and rejected
  4. A record of any conflict of interest and, in that case, a note of any dispensation granted by the authority's standards committee
Powers to exclude the press:

Even when key decisions are being discussed, a cabinet can exclude the press and public in three situations:
  1. When it is likely that if members of the public were present, confidential information would be disclosed
  2. When the cabinet has passed a resolution excluding the public because otherwise it is likely exempt information would be disclosed
  3. When the cabinet has passed a resolution excluding the public because otherwise it is likely the advice of a political adviser or assistant would be disclosed
A person who has custody of a document that is required to be available for inspection by members of the public commits an offence if he/she intentionally obstructs any person exercising a right conferred under the regulations to inspect the documents or make a copy of it, or if he/she refused to supply a copy of it

The Journalists Sources

Judges – In common law judges have the power to order disclosure of the identity of wrongdoers

Requests by officials – Sometimes the person asking the journalist for a source will be a tribunal chairman or an official.

Requests by a police officer – Sometimes the person asking the journalist for his source will be a police officer. Like other citizens, the journalist has no legal duty to provide information to the police for their inquiries except in special circumstances

Statutes giving disclosure power:
  • The Criminal Justice Act 1987
  • The Serious Organised Crime and Police Act 2005
  • The Financial Services Act 1986
  • The Financial Services and Markets Act 2000
  • The Criminal Justice Act 1993
  • The Police and Criminal Evidence Act 1984
  • The Police Act 1997
  • The Regulation of Investigatory Powers Act 2000
  • The Pensions Act 2004


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