The law protecting confidential information is an important part of your right to privacy. The law of confidence has its origins in the commercial world of protecting trade secrets and confidential lists of business contacts. It has now grown far beyond this, and has recently been used in cases involving celebrities objecting to media intrusion of their private lives. Rather than speak in terms of a right to privacy, the courts have preferred to recognise such a right through actions based on breaches of confidence. Now photographs taken of people in both private and public places, or information obtained about a person’s activities from another person may be treated as confidential. A person may be able to sue where such confidential information is published or used in breach of the implied obligations of confidence.
The protection available to you must inevitably be balanced against the important right of freedom of expression and disclosure of information in the public interest. For example, celebrities often seek public interest in their lives and may sometimes hold themselves up as a role model in a particular area. For this reason, they may sometimes find it harder to persuade the court to protect information about their personal life when a newspaper wishes to publish it. For example, a Premier Division footballer lost his case to try and prevent a newspaper publishing articles about his adulterous love affairs and visits to lap-dancing clubs where the other parties to the affair wished to publish their story, and a television presenter lost his attempt to prevent publication of details about his visit to a brothel. However, the fact that an individual has achieved prominence in the public eye (be it as a celebrity or an MP) does not entitle the media to publish anything at all they wish about their private life and the courts will still protect against the invasion of their privacy. Those who do not seek public interest at all will inevitably have a stronger case for seeking protection against disclosures of information relating to their personal lives by other people.
Historically, protection of confidential information depended on three main elements:
· The information itself would have to be confidential in nature - for example, health records or personal diaries.
· The person with the information must be under a duty to keep it confidential.
· The proposed use of the information must be incompatible with that duty.
The requirement of a duty of confidentiality can often be created by a contract. Members of the Royal households, for instance, have to promise never to reveal what they learn in the course of their employment and some general contracts of employment may be subject to such duties. But people who never think in terms of contracts share many secrets. There are many relationships which are by their nature confidential: for example, between a lawyer and a client, and between a doctor and a patient. The courts have been also willing to recognise that duties of confidence can be owed between spouses and even friends.
The courts no longer need to construct an artificial relationship between people in order to recognise that a duty of confidentiality has arisen. If a third party obtains information and knows or learns of its confidential character he or she can be required to respect the confidence. This means that a newspaper to whom a secret is sold or given can be ordered not to publish it. Secret documents, accidentally sent to third parties, may need to be returned. The language of ‘duty of confidence’ can even apply to a thief who steals private papers or documents. For the duty to arise, it may simply be sufficient for any reasonable person, standing in the shoes of the person who has obtained the information, to have realised that the information is confidential.
The requirement that the information has to be confidential in nature is now less strictly applied. While the information must have the basic attribute of inaccessibility to others, the court will not refuse an injunction because the information has leaked out to a limited extent or is available by any person with some degree of background knowledge (for example, information contained on a website is in principle available to any member of the public, but may in practice require knowledge for it to be accessed). However, there will come a point - as in the Spycatcher saga where a book containing confidential information was being widely published abroad - when it is plainly pointless to pretend that there is any secret left to be preserved.
There is obviously potential for a clash of interests here: between the rights of the person wanting the information to be kept secret, and the rights of the person who wants to disclose it or the public interest in that disclosure. For example, an employee may learn secret information about his or her employer during the course of his or her employment. The employer may expect this to be kept secret. But where this information reveals serious wrongdoing, it may be in the public interest for the employee to reveal it to the relevant authorities and the media may have a legitimate interest in notifying the public. These latter rights involve considering the principle of freedom of expression and the public interest in disclosure of confidential information. In many cases, a balance of the competing interests is often very difficult to strike.
Many breach of confidence cases take the form of applications for injunctions. An injunction is a type of court order that either prohibits or compels a particular action. By way of example, where a celebrity becomes aware that a newspaper is going to publish a story about his or her private life, the celebrity may seek to an injunction stopping the story being published in the first place. If the story has already come out, the celebrity may seek an injunction preventing any further publication. Important guidelines to courts deciding whether to issue injunctions in these cases were laid down by the Court of Appeal in the case of the adulterous footballer mentioned above, Gary Flitcroft. In accordance with these guidelines, the court must balance, on the one hand, the important right to private life and the confidentiality of the information, as against the important right of freedom of expression which supports the newspapers’ rights to publish stories. Anyone who wants to prevent publication of material by the media must pay very careful regard to the guidelines set out by the Court of Appeal and the particular factors which are considered relevant, including the status of the individual seeking the protection, the nature of the information which is to be disclosed and any relevant privacy codes which might apply to the media in question (considered further below).
If a person wishes to stop publication pending a full trial of the case, he or she is usually expected to give an undertaking to pay the defendant compensation if the action eventually fails. Since most people are unlikely to have the means to be able to give this kind of undertaking, such injunctions tend to be available only to the rich. If publication takes place before the plaintiff can act, the courts can still award damages or order the defendant to account for any profits made as a result of the disclosure.
It is hoped that actions for breach of confidence will result in the development of a coherent right to privacy that can offer protection to all people and not just those with deep pockets. Recent cases have demonstrated that if someone with a telephoto lens takes a picture of another person engaged in a private act (even from some distance), without their consent, the subsequent disclosure of the photograph may amount to a breach of confidence - in the same way as if that person had found or stolen a diary in which the act was recounted and proceeded to publish it.