Media Law - Confidentiality

Official Secrets Act
The Official Secrets Act 1911 and 1989 enforce national security surrounding the UK State or Crown. They place the duty of confidentiality upon employees where work is sensitive. In part this legislation was designed to punish spies who betrayed UK intelligence, but in later years it has applied to those who give away sensitive information to journalists. Usually the person leaking the information can be prosecuted by the Crown, however, if the journalist is seen as an accomplice, he too can be prosecuted. At the same time, a Crown employee who doesn’t give information to journalists deliberately, but leaves it where it can be found or accessed, they can be punished.

In 1998, a journalist was arrested and charged over the 1984 OSA. After publishing his book The Irish War, Tony Geraghty, once the Sunday Times defence correspondent, had published The Irish War, in which he disclosed computerised surveillance in Northern Ireland by intelligence agencies. It took a whole year before the charges were dropped.


The Right to Privacy
It wasn’t until the Human Rights Act 1998 came into place that English law acknowledge the right to privacy. Under Section 8, it guarantees the right to privacy. Even so, more importantly for journalists; when courts are considering injunctions, Section 12 requires ‘particular regard’ for them to recognise freedom of expression covered in Article 10.


Breach of ConfidenceThe law of breach of confidence makes sure that information acquired when given in confidence, cannot be published.

To breach confidence, according to Mr Justice Megarry there are three elements;
- The information must have ‘the necessary quality of confidence’
- The information must have been imparted in circumstances imposing an obligation of confidence
- There must be an unauthorised use of that information to the detriment of the party communicating it


Injunctions
If a person has confided information to a journalist, and they find out that it is going to be published, they can try to get a temporary injunction that prohibits the publication of the confidential information.

In 1984, Southern Evening Echo in Southampton was presented with an injunction from Medina Borough Council, on the Isle of Wight. It stopped the paper from reporting on development plans in Newport, the capital. On arrival of the Hovercraft, the injunction was given which meant that the papers could not be distributed. A new edition had to be distributed to the island.

If an injunction is in place at one newspaper and another in England or Wales learns of the information, they can be in contempt of court if they publish it. This was held in the Court of Appeal in 1987.