Law - 3 November

Confidentiality and Privacy was the subject of law this week. These are laws that keep changing so we need to keep up to date.

Privacy is linked to Articles 8 and 10 of the Human Rights Convention. Article 8 is that everyone has the right to a private life and 10 is freedom of speech.

Confidentiality is linked to the Official Secrets Act 1989. This is a criminal offence to disclose official information without lawful permission. You can find more about the act at, http://www.ros.gov.uk/foi/staff_handbook/Official_secrets.html. We can not use the public interest defence and the offence itself is punishable by 14 years in prison.

This can be done easily as a journalist if you are filming for a story on an army base or a submarine for example. As if you film or take pictures of a prohibited space you will be in breach of the official secrets act.

The PCC's definition of Public Interest includes, but is not confined to the following:

• Detecting or exposing crime of serious impropriety.
• Protecting public health and safety.
• Preventing the public from being misled by an action or statement of an individual or organisation. -> This is the defence we will rely on most.

With confidentiality you are allowed to keep secrets as long as they are not against the publics interest. A doctor, employee, lawyer etc can commit a breach of confidence if they discuss a secret with a third person. This is third party breach of confidence, when you are told a secret that was between two people.

It is fine to publish this secret but you have to talk to the person the secret is about and inform them of the fact that you are going to publish it. If you do not inform them before it is published they will be able to sue you. As a side note, when contacting them, never say, "you have possession of the information," but that, "you have seen the document." However, it is a catch 22 as if the secret is big enough to publish it is probably big enough for them to get an injunction from a judge. This will mean that you will not be able to name and shame them. Their identity must be kept secret. This is only a delaying tactic though as it will then go to court and the judge will decide if it is in the public interest to know this or not. The case can go on for years and will cost a lot so this may dissuade some editors from having it published.

A super injunction can also be taken out and this means that not only does the person the secret is about has anonymity but you can not print the story or anything about the injunction. It is completely 100 percent anonymity to everyone, no one can talk about it.

A secret is only confidential when all the following points have been ticked. If any one of them are missing it is not confidential.

• The quality of the confidence, this can not be a rumour.
• If the secret was provided in circumstances imposing obligation. For example, a normal reasonable person would think it would be kept secret.
• No permission to pass on the information given.
• Detriment is likely to be caused to the person who gave the information.

Privacy

Article 8 states: 'Everyone has the right to respect for his private and family life, his home and his correspondence.'

Privacy mainly affects magazines and tabloids as they are more based on celebrity and their private lives.

You must have consent when filming someone or taking their picture. There are two types of consent.

• Explicit consent - The person has signed a contract. Or a release document. This will be useful if you think that the person may sue you at a later date; as you will have written proof of their consent.
• Implicit consent - They are looking in to the camera so they know that they are being filmed. You can also ask them to consent on the camera too as this would be good evidence of their consent if you were to be sued.

The case for privacy is Princess Caroline of Monaco. She campaigned for injunctions to stop the paparazzi from continuously filming her in every day life.

After initially failing in court she then won on her second appeal for privacy. The ECHR ruling was that there is no legitimate public interest in knowing the whereabouts and behaviour of individuals generally, despite their fame or being in public. A legitimate expectation of protection of ones private life is to be extended to the criteria for assessment. A fair balance is to be struck between the right to privacy and the freedom of the press.

Photo By: RestrictedData