Sunday, 31 October 2010


This week's media law topic was privacy and confidentiality.

Section 8 of the Human Rights Act states that everybody has a right to privacy, including the right to enjoy private family life.

Civil Law

IN THE PAPERS THIS WEEK: Wayne Rooney on the front page of The Sun on holiday in Dubai. It is bigger news than it would have been because this has come just after questions over his loyalty to Manchester United.

So this is a clear breach of Section 8...


1. The Sun would have got clearance to run these pictures from Rooney's agents.
2. It is likely money changed hands before permission was given.

Therefore, The Sun are in the clear, even though there needs to be consent from the subject of the picture in normal circumstances. The only time consent is not necessary is when the subject is on a clear public duty.

One of the most famous cases of picture rights is the HELLO! vs. OK! case

- Catherine Zeta Jones and Michael Douglas had given exclusive right to OK! for their wedding pictures, but not Hello! which also published them.
- In 2003, the judge said there was no law of privacy in which the celebs and OK! could recover damages from Hello!
- In 2005, the Court of Appeal decided the stars' confidence had been breached, so were allowed to sue Hello!
- But the decision that OK! could sue Hello was not overturned. See page 401 in McNae's.

If you breach any of the above, you can be sued, but if you breach the Official Secrets Act (1911), it could be a criminal offence.

Section 1 (see page 503) covers anything that could hinder a war effort or homeland security.
- For example, it is illegal to take pictures of army bases or power stations etc.
- You can be arrested on the spot under Section 33 of the Prevention of Terrorism Act.

Other sections cover what are known as 'silly secrets'.

Common Law

Everybody has a right to privacy (i.e. to keep secrets), so long as it is not in the public interest.

As a journalist, you have committed a crime and may have to pay compensation if you fail to uphold this right. This is known as BREACH OF CONFIDENCE.

A claimant has show all four of the following in court to prove you have breached their confidence:

1. The information has the necessary quality of confidence. This is serious information, which is not known (e.g. - your medical record). Things such as your birthplace and date of birth are regarded as 'tittle-tattle' so is not classed as breach of confidence.

2. The circumstances/place in which the information was imparted lends itself to private matters. For example, if you shout "I am gay" in the middle of town, your case will not get to court!

3. There was no permission to pass on the information.

4. Detriment to well-being has been caused as a result.

N.B. - the claimant has to prove every single one of these points to prove breach of confidence, where as in defamation, he/she only has to prove a tendency to one of the points.

Gagging clauses (in employment)

Although not part of a worker's contract of employment, they owe a common law 'duty of confidence' to their employer. This is so that any issues can be solved quietly and internally.

As a journalist, if you are interviewing anyone who is unhappy with their company (e.g. NHS?), it your duty to warn your subject that you are breaching this confidence if with what they are about to give you.

If they are still happy to carry on, fire away!

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