5C Privacy, Confidence & Data Protection : Legal Protection of Confidential Information
The law seeks to protect confidential information by preventing those who have obtained confidential information from taking unfair advantage of it e.g. an employee improperly divulging the secrets of his/her employer.
Historically, the courts required that a ‘relationship' of confidence existed between the person seeking to disclose information and the person seeking to protect it e.g. employer/employee. However, the relationship of confidence has been greatly expanded and now, as long as the surrounding circumstances denote that the information is confidential, this will suffice for the purposes of seeking the protection of the law.
Often, particularly in current affairs programmes, programme-makers and broadcasters will come by information that is clearly confidential and the question arises whether or not there is justification to publish that information to a wider audience.
How Confidential Information is Protected
If a broadcaster publishes confidential information without authorisation, then the individual or organisation whose confidence has been betrayed may be able to sue the broadcaster for damages. In addition, if the individual or organisation becomes aware of the intention to divulge the confidential information before broadcast, they will often apply to the Court for an injunction i.e. a temporary order preventing broadcast until the matter can properly be decided at a later trial. Note: a pre-transmission injunction based on the law of confidence is one of the easiest ways for an individual or organisation to stop programmes being broadcast.
It is also important to note that if an injunction is granted, even against some other media organisation, all media organisations who are aware of the injunction will be similarly bound by it, even if they are not named specifically on the Order. To breach an injunction is to commit a contempt, i.e. a criminal offence.
The law of confidence has been widely used to prevent publication of all kinds of confidential information e.g. companies use the law of confidence to prevent their commercial and trade secrets being divulged to competitors; celebrities and royalty have used it to try to prevent former staff from revealing details about their domestic arrangements and private lives; individuals have used the law of confidence to try to prevent details of their sexual relationships being made public; and, governments use it (often in conjunction with Official Secrets legislation) to prevent defence and intelligence staff and, in turn, journalists from divulging protected information which could be damaging to the national interest.
Public Interest Defence
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 i.e. the media can broadcast/ publish confidential material or information providing the public interest in so doing is greater than the public interest in maintaining the confidence.
In resisting any application for an injunction or any action for damages, it would be up to the broadcaster to establish that publication/broadcast was in the public interest e.g. it was necessary to expose crime, corruption, anti-social behaviour or injustice.
Confidential Information Protected by Contract
Confidential information may also be protected by the law of contract e.g. employers may make it a term of their employment contracts that staff are bound not to disclose confidential or private information to third parties which they have come to know as a result of their employment e.g. staff of celebrities or royalty. Whether a court will act to enforce such confidentiality clauses will normally turn on the nature of the confidential information to be disclosed and whether, in all the circumstances, it is in the public interest that the confidentiality clause be enforced or not. In addition, employees or ‘whistleblowers' are now further protected under the Public Interest Disclosure Act 1998, where they are dismissed or victimised for making a protected disclosure of information.
Wherever a programme may reveal confidential information, advice must be sought from the programme lawyer at an early stage.