Public Law - Breach of Confidence

Public Law

Introduction   

The concept of confidentiality is not only founded on ethics but also has a legal basis. According to Barnett, confidentiality is protected under common law[1]. It is unlawful for one to disclose another person’s information without his or her consent. Disclosing such information would constitute a breach of confidence and is actionable under the law of tort[2].  The principle of breach of confidences constitutes a civil remedy that is intended at protecting individuals against unauthorised disclosure or use of their personal information, which is not generally known. Alternatively, the principle of breach of confidence is intended a restraining disclosures on other peoples information before they occur[3]. Traditionally, the doctrine of breach of confidence was limited to trade secrets. However, application of the principle of breach of confidence has been expanded to include different areas.  This paper provides legal advice on the underlying legal issues in relation to the kind of story and or pictures that can be published in relation to events outlined in the following scenario. The legal advice is based on relevant case law.

Scenario

As the Barry Bugle newspaper editor, Evan Evans recently heard from reporters of two newsworthy events in Barry Island that Brad Pitt was on holiday in the island with his children. Similarly, the editor received a telephone call informing him that Dylan Davies; a renowned Welsh international football player was attending meeting of Gamblers Anonymous, an organisation that specialises in assisting individuals addicted to gambling. As a professional player, Dylan Davies is an outspoken public figure on the dangers of gambling.

Analysis

The two issues outlined in the scenario above illustrate prevalence of breach of confidence.  Breach of confidence occurs under different circumstances. One of the fundamental situations occurs if the said information is not within the public domain. Obtaining such information would constitute infringement into one’s privacy[4].  Secondly, breach of confidence occurs if the said information is confidential and was acquired in circumstances that strictly outline that the information must be treated as confidential. The third situation relates if the information is or about to be disclosed without the owners’ consent or authorisation.

Caristi et al. are of the opinion that ‘privacy intrusion occurs at the point where the information either visual or verbal is collected and not necessarily when the information is published’[5]. Under the first scenario, Evans could be sued if he publishes photos and images of Brad Pitt and his family while on a holiday without Pitt’s consent.  Despite the fact that Evans receives information regarding Brad Pitt’s holiday within the island from a reputable source and confirms it, publishing such information would constitute an infringement or intrusion into personal privacy. Privacy entails the right for one to be left alone. Individuals have the right to seek legal redress if their privacy is breached.  This aspect is underlined in the case of Albert v Strange, in which Prince Albert succeeded in seeking an injunction that prevented exhibition of an etching that he had produced in collaboration with Queen Victoria without the two parties consent[6].  

Feldman asserts that ‘someone who seeks to restrain an alleged breach of confidence, or is to obtain a remedy for a past breach must  show that the material or information in issues has the necessary quality of confidentiality either because of its nature of a sensitive personal kind’[7].  On the basis of this aspect, Brad Pitt can sue the Editor for revealing his personal information regarding his holiday with his family because such information was a matter of sensitive personal business.

This aspect is underlined in the case of Kaye v Robertson [1991] FSR 62. In this case, a renowned actor was hospitalised after an accident. Journalists took photograph of the actor in his hospital bed and published the photograph without the actor’s permission. The actor sued the journalist for breach of privacy. In making a ruling, the court stopped the journalist from publishing the actors photograph. The court argued that publishing such information constituted breach of confidence. The breach of confidence is further underlined in the case of Argyll v Argyll [1976] Ch 302. In this case, the Duchess and Duke of Argyll had filed a divorce in a court of law. However, the Duke sold the confidential information relating to the couple’s marriage life to a local newspaper, the People. Considering the fact that the confidential information was obtained without the consent of the Duchess, the court ruled that it was illegal for the local newspaper to publish information relating to the couple’s marriage life. Publishing such information would constitute breach of confidence[8].

Despite the fact that Dylan Davies publicly criticises gambling culture in professional football, Evans could be sued for breach of confidence if he publishes photos depicting Dylan Davies as a gambling addict without Dylan’s permission. Additionally, information on Dylan Davies attendance of the meeting intended to help individuals addicted to gambling was known by only a few individuals. Thus, that information cannot be regarded to be in the public domain.  This means that information on Dylan’s attendance of the meeting can be considered to be limited for a particular purpose and hence was inaccessible to the public. As a newspaper editor, Evans can write a story on Dylan Davies criticism on gambling addiction. This arises from the fact that Dylan’s effort in criticising gambling culture in professional football constitutes information within the public domain.

Nevertheless, he can be sued if he publishes photos showing Davis leaving the Gambling Anonymous meeting. As a journalist, Evans should be informed of the fact that he can be sued for breach of confidence is he reports leaked by their sources. As the recipients of confidential information received from different sources, journalists are bound by the doctrine of confidence as recipients of such information[9]. This aspect is underlined in the case of Campbell v Mirror Group Newspapers [2004] 2 AC 457. In this case, the newspaper published a report revealing information on Naomi Campbell treatment for drug addiction. Daily Mirror further published photographs of the famous model undergoing drug rehabilitation at Narcotic Anonymous in 2001.  Naomi Campbell sought civil remedy on the issue. In suing Daily Mirror, Campbell sought protection under the UK Data Protection Act 1998. Similarly, Campbell sought compensation under the principle of breach of confidentiality.   Campbell won the case against the newspaper group. In making the ruling, the court argued that while it was acceptable for the newspaper to report on the plaintiffs information regarding drug addiction treatment, it was illegal for the newspaper to publish photographs showing Campbell leaving her place of treatment. The judge argued that publishing such information would constitute infringement on the plaintiffs’ right of privacy.  

Despite the fact that section 6 of the Human Rights Act stipulates that only public authorities can be charged for breach of confidentiality, it is possible to sue instance of breach of confidence between individuals and private entities such as the newspaper company in this case.  However, if the information regarding Dylan Davies attendance to the Gambling Anonymous meeting and Brad Pitt’s public holiday within the island was within the public domain, then the Evans cannot be sued for publishing stories and photographs regarding the two parties. However, Brad Pitt can sue Evans for publishing images of his children. This arises from the fact that Brad Pitt’s children are not public figures.  Under the law of tort, it is publicising true information regarding a non-public figure’s private life is offensive and actionable[10]. Information that is within the public domain cannot be enforceable under the doctrine of breach of confidence[11]. In the two incidences, Evans did not obtain information regarding their presence within the island from Brad Pitt and Dylan Davies. On the contrary, the editor received information from informants. The court of law treats information received from such sources as confidential.

In spite of the fact publishing information regarding social evils amongst different members of the society such as celebrities constitutes excellent investigative journalism, the extent to which journalists have a right or liberty in reporting information specific individuals in limited[12]. This aspect is underlined by the case of Campbell v Mirror Group Newspapers [2004] 2 AC 457 in which the court ruled that illustrate that there is an extent to which journalists are limited or are at liberty to publish private information. 

On the basis of the ruling made in the case of Campbell v Mirror Group Newspapers [2004] 2 AC 457, it is evident that photographs are characterised by a special intrusive effect. Publishing photographs without writing any other information has a considerably strong communication effect.  In determining whether an individual has breached confidentiality in publishing information or photograph belonging to another party, the court examines the circumstances with which the information or photographs were obtained, for example examining whether the information or photographs were obtained secretly.  In the process of reporting information regarding the two celebrities, it is imperative for Evans to seek consent from the two parties, viz. Dylan Davies and Brad Pitt.  Moreover, the court evaluates whether the individual whose information or photograph was published had specific expectations of privacy.

Conclusion

The analysis of the issues surrounding the two events indicates that Evans may be liable if he publishes information or photographs relating to Brad Pitt and his family or Dylans Davies and his involvement in Gambler Anonymous meeting. As a journalist, Evans can publish information regarding the two public figures viz. Brad Pitt and Dylan Davies. However, the editor is restricted under law to publish photograph relating to Brad Pitt’s children. Evaluation of the case law shows that an individual who is of the view that his or her privacy has been intruded has the right to seek legal remedy under the law of tort, for example by seeking legal redress on infringement or breach of confidentiality. In the two events, the journalists can be sued for publishing images that might lead to infringement in the two public figures private lives. This aspect indicates that the editor’s freedom to publish photographs and images relating to other parties is limited.  In undertaking his journalism activities, it is imperative for Evans to be conversant with the legal issues inherent in the information or images to be published. This arises from the fact that publishing some information might lead to incurrence of significant legal costs. 

References

Barnett Hilaire, Understanding public law (New York: Routledge 2012).

Caristi Dominic, Davie William and Cavanaugh, Michael, Communication law (New York:

            Routledge 2007).

Clements Richard, Public law (Oxford: Oxford University Press 2004).

Crone Tom, Law and media (London: CRC Press, 2011).

Feldman David, English public law (Oxford: Oxford University Press 2014).

Fenwick Helen and Phillipson Gavin, Text, cases and materials on public law and human            rights (New York: CRC Press 2013).

Frankman Andrew, Martin Rebecca and Ray Claudia, Internet and online privacy; a legal            and business guide (London: ALM Publishing 2016).

Kaan Terry and Ho Calvin, Genetic privacy; an evaluation of ethical legal landscape           (London: World Scientific 2008).

 Smartt Ursula, Media and entertainment law (Mason, Ohio: Taylor & Francis 2007).

Staples William, Encyclopaedia of privacy; AM (New York: Greenwood Publishing 2011).

Statsky William, Torts; personal injury litigation (London: Cengage Learning 2010).

Thomas Rosamund, Espionage and secrecy (New York: Routlege 2007).