Saturday, 20 October 2012

Media Law, Lecture 2, Year Three - Privacy and Confidentiality

Our second law lecture of the third year was a lesson in privacy and confidentiality, exploring topics including  Article's 8 and 10 of the Human Rights Act, case examples where privacy was key, and injunctions.

Working on WINOL every week does wonders for helping us learn about privacy issues. On a regular basis during a Monday debrief, attention will be put towards the actions a particular reporter has taken to prevent privacy issues arising. This can include techniques such as blurring a number plate using Final Cut.

In a previous blog post, I touched on surreptitious filming or recording.

"Surreptitious filming or recording should only be used where it is warranted, and normally it will be warranted if:

1) There is a prima facie evidence of a story in the public interest
2) There are reasonable grounds to suspect that further material evidence could be obtained
3) It is necessary for the credibility and authenticity of the program.

Using an example relating to WINOL will help understand privacy clearly. If a reporter, for example, was told by an interviewee off camera and then told to keep it to themselves, broadcasting what was said would class as a breach of confidentiality. Admittedly, it's sometimes the case that information revealed off camera is more interesting than anything else, but as journalists we must often respect the privacy of those we talk to.

Picture: Courtesy of
If a health professional were to share information about a patient, this would also be a breach of confidentiality.

FOI requests are put forward by WINOL reporters on a fairly regular basis, and serve as a way of gaining information that could be used to form an investigation. The Freedom of Information Act links to the themes of privacy and confidentiality as, if used correctly, it can be a particularly useful means of gathering interesting data and stories from organisations in the public sector. Any person making a request for information to a public authority is entitled to be told whether the authority holds this information and is also entitled to see it.

Finding interesting information using this act as an aid is perfect for construction stories that are of genuine interest to the public.

Unfortunately, a large majority of the act is taken up by exemption. Any information on the military / national security, for example, cannot be obtained. As journalists it's important to steer away from anything that could be defined as a security risk. Confidentiality is another hurdle.

In the lecture we discussed military information and its relationship with the Official Secrets Act 1989. This act prevents public interest being used as a defence. When reporting on information that's linked with secret military plans, such an action is considered a threat to national security  The Official Secrets Act 1989 prevents such information being leaked. Reporting information under this category will result in severe punishment  Reporters can be sentenced up to 14 years in prison for such actions.

Information can be published if its considered to be in the public interest, which is defined as:

1) Detecting or exposing crime or serious impropriety
2) Protecting public health and safety
3) Preventing the public from being misled by an action or statement of an individual or organisation

Let's take a look at how to define a breach of confidence.

1) A person is said to be in breach of confidence if they pass on information which has "the necessary quality of confidence". In other words, the information is considered important and is not already common knowledge.


2) A person is said to be in breach of confidence if the information they provide was provided in "circumstances imposing an obligation". This relates to the health professional example I mentioned earlier. A private consultation with a boss or a doctor, for example.


3) A person is said to be in breach of confidence if there was no permission to pass on the information.


4) A person is said to be in breach of confidence if detriment is likely to be caused to the person who gave in the information.

To summarise, secret information in both a personal sense and a private / commercial sense, must have: Quality of confidence and circumstance and no permission to reveal and cause actual detriment.

If any of the factors listed above are missing, then this means that the information is not classed as confidential, and therefore it can be revealed without breach.

Next, we will take a look at 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 TV show is broadcast, that the information is to be disclosed, he/she can try to get a temporary injunction prohibiting publication of the confidential material.

During the lecture we discussed the case concerning Max Mosley. The newspapers published information concerning his private sexual affairs. An injunction on such information would have stalled the papers and prevented the information being published so soon. Injunction are fairly simple to implement as they only delay publication of material.

Super injunctions prevent the publication of the information that someone has requested an injunction. There's some interesting information on injunctions and super injunctions here:


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