5C Privacy, Confidence & Data Protection : Key Points

English law now recognises a right to privacy and will intervene to protect individuals' privacy rights.
A court which is considering granting an injunction preventing broadcast of a television programme on the basis of infringement of privacy must consider whether it is in the public interest for the material to be published and also the extent to which the broadcaster has complied with the Ofcom Broadcasting Code. Compliance with the privacy rules and practices contained within the Code is therefore likely to ensure a programme complies with the law.
The Protection From Harrassment Act 1997 makes it a criminal offence to engage in a course of conduct which amounts to harassment of the subject. There is no specific defence for journalists. In addition, the subject of the harassment may seek damages from the harasser, apply for an injunction after only one act of harassment and apply to the court for an arrest warrant to be issued if the harasser breaches any court order. Compliance with the provisions of the Code on fairness and privacy would assist in any defence. See Fairness and Privacy chapters 4C and 4D respectively.

The law protects confidential information from being improperly divulged and if a broadcaster publishes confidential information without authorisation, they risk being sued by the individual or organisation whose confidence has been betrayed. In addition, if the party whose confidence is about to be betrayed becomes aware of it before broadcast, they will normally apply to the court for an injunction to prevent the confidential information being disseminated. If successful, this is likely to mean that the programme cannot be broadcast.
The law of confidence can be one of the easiest ways for an individual or organisation to use the law to stop a programme being broadcast, by obtaining a pre-transmission injunction.
If an injunction is granted, even against some other media organisation, all media organisations who are aware of its existence will be similarly bound by it. Breaching an injunction is to commit a contempt i.e. a criminal offence.
The main defence to any legal action for breach of confidence, or an application for an injunction based on breach of confidence, is that there is an overriding public interest in publication e.g. it was necessary to expose crime, corruption, anti-social behaviour or injustice. See definition of 'Public Interest' at Chapter 4D .
Wherever a programme may reveal confidential information, advice must be sought from the programme lawyer at an early stage.

Broadcasters and programme-makers must comply with the provisions of the Data Protection Act 1998, which protects individuals' personal privacy rights and the way personal information about them is 'processed'. The act contains a number of principles that people ‘processing' personal data, including programme-makers, journalists and editorial staff, must comply with and provides even greater protection to ‘sensitive personal data'. It also grants the data subject a number of rights in relation to the information that organisations hold about them.
Personal information which is processed only for journalistic purposes is exempt from many provisions of the Data Protection Act which otherwise would stifle and prohibit honest journalistic practices. However, the journalistic exemption only applies if the processing is done with a view to publication of material which has not previously been published. Once a programme has been broadcast, programme-makers and broadcasters must comply with the data protection principles and comply with any subject access requests. Furthermore, the journalistic exemption only applies if the broadcaster reasonably believes that publication would be in the public interest and that, in all the circumstances, to comply with the rules of the Act would be incompatible with journalistic purposes.

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