Confidentiality

Settling into today's law lecture, after a detailed recap on defamation, we begin to look at confidentiality.

Confidentiality is an ethical principle associated with several different professions, for example in law or medicine. The types of communication between a person and one of these professionals are "privileged" and may not be discussed or divulged to a third party. Each person has a right to expect the other to be confidential when sharing private information.

When looking at confidentiality there are three main areas of concern:

1. State secrets. This mainly affects certain types of investigative journalism and reporting communities with links to the armed forces.

2. Commercial secrets. These are vital for business to business (BTB), solid news reporting, investigative reporting and specialist reporting.

3. Privacy. This is mainly a matter for tabloid and celeb journalists. It focuses on the privacy law of The Human Rights Act, section 8, which guarantees a "right to respect for privacy and enjoyment of a normal family life", subject to restrictions as prescribed by law and necessary in a democratic society towards a legitimate aim.

When looking at the first area of confidentiality, this being official statutory secrets, certain types of public information such as details of military or intelligence operations are "official" secrets. The Official Secrets Act (OSA), passed in 1911 contains schedules of secret information, if any of this information is revealed it can lead to criminal prosecution. The main danger regarding this is inadvertently breaking the OSA by taking wallpaper shots of military bases as the location of these bases must be kept highly secret.

Accredited to m_culnane

As a common law people have a right to keep secrets, as long as this is not against the public's interest. There is also a right to pass on these secrets to others with the expectation that they will not pass them on to others. If they pass on these secrets without permission they are breaching the common law.

Confidentiality partly depends on the type of secret information at stake, and partly on the expectation of the person imparting the information that should be kept secret. A person is in breach of confidence if they pass on information which....

a) has the necessary quality of confidence (e.g it is important and is not already known.) It is not just tittle-tatttle or someone's date of birth.

b) it was provided in circumstances imposing an obligation (e.g when a reasonable person would think it would be kept secret such as a consultation with a boss or a professional such as a doctor and not just said at a party or discussed in a group.)

c) there was no permission to pass on the information

d) leading to detriment as a likely consequence to be caused to the person who gave in the information.

Detriment is again different to defamation, where the complainant does not have to show that they are likely to suffer, just that the defamation may "tend" to make people think less of them.

If any of the below...

1. Quality of confidence AND

2. Circumstance AND

3. No permission to reveal AND

4. Cause actual detriment

are missing then the information is not confidential and it can be revealed with breach.

One interesting case mentioned in class was that of the Bill Goodwin, Tetra case. Basically Bill Goodwin was a reporter for The Engineer, a well known magazine that reports the latest business news in engineering and technology. He discovered that Tetra, a building company was selling faulty products. Goodwin then published this in The Engineer and Tetra was immediately out of business. The company then sued Goodwin, demanding that he reveal his source and that he will be continually fined until he produced this information. The House of Lords continued this legal battle, surprising the European Courts of Human Rights who were in favour of Goodwin. The case was eventually dispatched after five years.