Confidentiality

Originally published November 28th 2013 on Journalism Now for my MA Journalism.

Though your confidence may be shattered, does it matter?

BREACH OF CONFIDENCE – THE CONCEPT

‘I think I have a sexually transmitted disease’. Such a sentence uttered to your doctor would be done so in confidence, in the knowledge that your medical professional would not blurt this comment out to individuals or media organisations for some nefarious, financial or whimsical reason. This understanding is indicative of the perceived levels of confidence that exist between parties. For example, when contemplating regaling a work acquaintance at the pub with the news that you have the clap, your confidence in the news remaining secret would be less so than when informing your doctor.

The patient-doctor relationship would be significantly altered and potentially irrevocably damaged if people lacked the confidence to seek medical advice for fear of such conversations being relayed to third parties. The ramifications to the health of the nation would potentially be acute. The Nursing and Midwifery Council’s confidentiality code states that it is not acceptable for nurses or midwives to:

discuss matters related to the people in their care outside the clinical setting
discuss a case with colleagues in public where they may be overheard
leave records unattended where they may be read by unauthorised persons.
This duty of confidence is borne of legal precedent and statutes. Article 8 (Right to respect for private and family life) of the European Convention of Human Rights states that:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others

Exemplifying point 2, the following case, centring on a psychiatrist’s breach of patient confidentiality, highlights the public interest defence (to which I shall return) in breaches of confidence; http://www.dailymail.co.uk/news/article-2374887/Paedophile-outed-psychiatrist-breached-patient-confidentiality-tell-police-sickening-fantasies-schoolgirls.html

CRIMINAL BREACHES OF CONFIDENCE

The Official Secrets Acts 1911 and 1989, enshrined to protect national security, is pertinent to the discussion of confidence. The Act states that a person who is or has been:

(a) a member of the security and intelligence services; or

(b) a person notified that he is subject to the provisions of this subsection,

is guilty of an offence if without lawful authority he discloses any information, document or other article relating to security or intelligence which is or has been in his possession by virtue of his position as a member of any of those services or in the course of his work while the notification is or was in force.

The David Shayler case places the criminal breach of confidence in a journalistic context, given the former MI5 officer’s disclosure of secret documents to the Mail on Sunday in 1997 which resulted in his 2002 imprisonment under the above Act. For case history http://www.theguardian.com/uk/davidshayler

The case of the late, former Hampshire Chronicle journalist, Crispin Aubrey, included charges under section 1 and 2 of the 1911 Act, in which Crispin received a non-custodial sentence despite facing a possible 14 years imprisonment. The case is detailed on http://www.independent.co.uk/news/obituaries/crispin-aubrey-journalist-convicted-under-the-official-secrets-act-in-the-abc-trial-8202747.html

Aubrey’s ‘ABC trial’ was notable for the defence’s use of information supplied by Jock Kane, a former GCHQ employee, who blew the whistle on, (in his eyes) fraud within the government’s intelligence agency. Whilst never prosecuted, his memoirs were to remain unpublished to his recent passing. The events are relayed in this obituary http://www.independent.co.uk/news/obituaries/john-kane-whistleblower-at-gchq-whose-campaign-was-frustrated-by-the-government-8923379.html

The Aubrey case precipitated the 1989 Act under which it is an offence for a Crown servant or government contractor, member of the public or other person to disclose official information in any of the 6 protected categories if the disclosure is made without lawful authority and is damaging to the national interest. These categories are Security & Intelligence, Defence, International Relations, Confidential information from another State, Crime and Special Investigation Powers.

The Act defines prohibited places, of which journalists should be especially wary, when working. The strict liability incorporated into the Act means, for example, a general view shot of such a place, would result in a charge. This could occur when interviewing nuclear energy protestors in the vicinity of prohibited places such as The United Kingdom Atomic Energy Authority site at Harwell, Didcot and The British Nuclear Fuels plc site at Sellafield.

The scepticism with which the press treat politicians has recently been evident in the fiery debate over a new, post-Leveson, industry regulatory system. Such flames of fear are sparked and enraged by yesteryear’s political interference. Famously, the Spycatcher case in which the two estates locked horns, exemplified the concept of a court injunction against one media organisation as being applicable to all such organisations in that country, if they are aware of its existence. The case http://news.bbc.co.uk/onthisday/hi/dates/stories/october/13/newsid_2532000/2532583.stm

CIVIL BREACHES OF CONFIDENCE

Such commercial and privacy breaches significantly exercise the muscles of the legal profession. Typically an employment relationship entails an employee having a duty to protect commercially sensitive information obtained in their employ. Prudent organisations would, arguably, overtly reference this in the employee’s contract. If a design employee of Nike divulged details of a new trainer design to Adidas, s/he could be sued for a breach of confidence. If a media organisation came into possession of the details they would need a defence to publish them, such defences shall be detailed later. If Nike expected this breach of confidence, they could apply to the High Court for a temporary injunction which should only be issued if there is an expectation that publication would be a breach of confidence.

The severity of breaches of confidence, which organisations can deem to be gross professional misconduct, emanates from the reputational as well as fiscal damage they can cause, as exemplified by the Graham Pink case. The issues of patient care that this NHS Whistleblower articulated to his management then the Society Guardian in 1990 are timeless. Graham, a former nurse on a geriatric ward at Stepping Hill hospital, Stockport, expressed his concerns on http://www.patientprotect.org/pink.htm

ELEMENTS OF A BREACH OF CONFIDENCE (as developed in Coco v A.N.Clark (Engineers) Ltd 1969)

1) The information must have the necessary quality of confidence. In Cranleigh Precision Engineering v Bryant (c.1966), the defendant developed two inventions, in his employment for Cranleigh, a swimming pool manufacturer, before resigning and joining a rival company. The plaintiffs, Cranleigh, sought an injunction to restrain Bryant and his new company from using or disclosing confidential features of his inventions. The court held that the two inventions were trade secrets.

AND

2) The information must have been provided in circumstances imposing an obligation of confidence. The law operates on the conscience of parties i.e. an established relationship, such as employer-employee, need not exist. The central legal question would be whether a reasonable person would understand from the nature and circumstances of the disclosure that it was being received in confidence. A current case in which the Supreme Court explained that liability for a breach of confidence is founded on the recipient’s conscience; http://www.inhouselawyer.co.uk/index.php/litigation-a-dispute-resolution/10301-former-employee-slips-through-the-net-in-breach-of-confidence-claim

An obligation of confidence arises from different ways, such as the employment relationship as in HRH Prince of Wales v Associated Newspapers Ltd (http://www.newlawjournal.co.uk/nlj/content/law-reports-140) or personal relationships as in Duchess of Argyll v Duke of Argyll (1967) wherein an injunction was sought in relation to the People’s publication of the Duke’s marital revelations. Relevant given the phone hacking trial, such obligations can also come from unethical behaviour. Journalists who come across confidential information by behaviour that passes the Rubicon of public acceptability could commit a breach of confidence.

AND

3) There was no permission to pass on information and detriment is likely to be caused to person to whom the confidence is owed i.e. the person who imparted the information originally. Detriment can be financial, reputational, physiological or psychological. A-G v Times Newspapers 1992 centred on confidential information the newspaper received from a former British intelligence service person. The case, again featuring the interaction between government and the fourth estate; http://www.5rb.com/case/Attorney-General-v-Times-Newspapers-Ltd-and-others

THE SIGNIFICANCE OF FACCENDA CHICKEN V FOWLER (1987)

In this case, the plaintiffs sold chicken via van delivery to a vast network of customers, known to the plaintiff, Fowler. As sales manager for Faccenda, Fowler lacked a restraint of trade contractual clause. He left and set up a rival firm, joined by eight similarly knowledgeable former Faccenda colleagues. The plaintiff sought, to no avail, damages for breach of an implied contractual term which centred on the employees not using confidential information (e.g. customers’ personal details and requirements, delivery times) obtained in Faccenda’s employ, post the cessation of their employ.

The Court of Appeal’s decision in Faccenda Chicken v Fowler [1987] established the concept of three classes of information, to which different considerations apply. They are listed below with class 2 being applicable in this case, according to the court.

Class 1: trivial or public information which is not confidential at all, and which an employee is free to disclose or use.

Class 2: information which the employee must treat as confidential (either because he is expressly told that it is confidential or because from its character it obviously is so) but which once learned necessarily remains in the servant’s head and becomes part of his own skill and knowledge applied in the course of his master’s business. It might well be a breach of the employee’s duties if he were to disclose this information whilst employed, but there is generally no restriction on him using or disclosing such information after termination of the employment.

Class 3: specific trade secrets so confidential that, even though they may necessarily have been learned by heart and even though the employee may have left the service, they cannot lawfully be used for anyone’s benefit but the master’s.

The lack of an expressed restraint of trade clause was key in this case as the confidential information was only protected in the former employee’s tenure by an implied duty of faithful service.

DEFENCES WHEN BEING SUED FOR BREACH OF CONFIDENCE OR INJUNCTED

1. Information did not have ‘the necessary quality of confidence’ due to its nature. For example it was trivial and/or unlikely to cause detriment, or because it was in public domain, perhaps via social media or the internet.

2. Public Interest Defence such as revealing corruption in a public service. The much derided Press Complaints Commission defines the public interest as exposing danger to the community, exposing attempts to mislead the public, or publication exposes wrongdoing, negligence or hypocrisy. Section 12 of the Human Right Act 19998 focuses the minds of judges on the question of public interest. Journalistic endeavour that has followed editorial guidelines such as Ofcom or the BBC’s own could be more able to succeed with this defence.

LEGAL REMEDIES FOR BREACHES OF CONFIDENCE

1. Claimant can ask judge for injunction to stop re-publication

2. Claimant can see court order for confidential material to be returned to him/her or destroyed

3. Claimant can sue publisher for damages (commercial rather than personal privacy loss can lead to higher costs) or ‘an account of profits’ (tends to refer to individuals clearly profiting from breaches rather than media organisations profiting due to the complexity of judge discerning which article led to what profit).

The revelation of JK Rowling as the author behind the pen name Robert Galbraith led to substantial damages being awarded; http://www.independent.co.uk/arts-entertainment/books/news/jk-rowling-wins-substantial-donation-to-charity-from-law-firm-behind-robert-galbraith-confidentiality-leak-8739299.html

For a case involving account of profits as a remedy see Jackson v Royal Bank of Scotland 2005 on http://www.e-lawresources.co.uk/cases/Jackson-v-Royal-Bank-of-Scotland.php

4. Claimant can ask judge to order publisher to disclose source so legal proceeding can be instigated for damages and/or to stop more disclosures. Journalists’ code of practice to not reveal sources may result in contempt of court proceedings. However, a journalist’s legal defence could call upon Article 10 of the European Convention on Human Rights (freedom of expression) or section 10 of Contempt of Court Act which says:

No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.

Further reading:

http://www.cps.gov.uk/legal/p_to_r/prosecuting_cases_where_public_servants_have_disclosed_confidential_information_to_journalists/#special Special Protection for Journalists’ Sources

http://www.gmc-uk.org/guidance/ethical_guidance/confidentiality.asp General Medical Council confidentiality advice

http://www.theguardian.com/law/2011/sep/22/official-secrets-act-cold-war Comment piece on the Official Secrets Act

http://www.theguardian.com/law/official-secrets-act Articles on Official Secrets Act

http://news.bbc.co.uk/onthisday/hi/dates/stories/october/13/newsid_2532000/2532583.stm Spycatcher case

http://news.bbc.co.uk/1/hi/7449255.stm 2008 story about secret terror files left on train

http://www.birketts.co.uk/resources/legal-updates/1262/employer-wins-springboard-injunction-after-exemployees-are-found-to-have-committed-numerous-abuses-and-breaches-of-their-employment-contracts/ Employer use of injunction

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