Confidentiality

McNae's law gives a good definition of breach of confidence. It's based upon the principle that a person who has obtained information in confidence should not take unfair advantage of it.
Government and individuals use breach of confidence for the protection of privacy and information they regard as secret.

The following are the four main elements which determine whether a person is in breach of confidence. If any of the following do not appear in the circumstance then it is not confidential and it can be revealed without breach;

• The information must have the necessary quality of confidence. The information must have a level of importance and must not already be known to the public. For example, saying someone is changing their hair colour (even though that does make a good read for us girls!) does not have the necessary quality of confidence;
• The information was proposed in circumstances imposing an obligation of confidence. This means the information must have been given in a place of privacy where a person would think it would be kept secret;
• There was no permission to pass on the information;
• Detriment is likely to be caused to the person who passed on the information. The person who gave the information must show how their status, reputation or occupation will be damaged if the information is revealed.

Breach of confidence has three areas of concern. They are: official state secrets, commercial secrets/common law confidentiality and privacy.

Official state secrets: The Official Secrets Act 1911 contains schedules of secret information. It is against the official secrets act to reveal any of this information and therefore, if this information reaches reaches pubication it is considered breach of confidence and is a criminal offence. Military or intelligence operations are protected under the official secrets acts. The military bases are therefore protected and any photography shots without permission are against the official secrets act.
An example an official secrets act breach was in 1986. Investigative journalist, Duncan Campbell, was working on a BBC television series called Secret Society. In the series, he revealed state secrets that were unkown to the public eye but of great public interest.
In 1986, Campbell discovered that the Government had planned to build a new space satellite which would enable GCHQ to eavesdrop on the Sovient Union. Word of Campbell's inquiries reached government and Nigel Lawson recounts in his memoirs that the government managed to lean on the BBC to ban the programme. Campbell was faced with an injunction and rushed his research into print in the New Statesman. The spy satellite and its code-name: Zircon, had been revealed.

Commercial secrets/ Common law confidentiality: In common law people have a right to keep secrets so long as it is not against the public interest. They also hav

e a right to pass on these secrets to others with the expectation that they will not pass them on to others. If a person who is not entitled to pass on our information for example, a doctor or lawyer, but does so, that person has committed breach of confidence which is a criminal offence.

Privacy: This is mainly a matter for tabloid or celeb journalism. The Human Rights Act 1998 Section 8,

guarantees the right to privacy and the 'normal enjoyment of family life.' The invasion of private life is a criminal offence and breach of confidence. In 2004, the House of Lords agreed that the supermodel Naomi Campbell, was entitled to damages after the Daily Mirror reported that she had a drug addiction, for which she was recieving treatment by Narcotics Anonymous. The paper gave details of the treatment and her reeaction to it, and published photographs of her emerging from a treatment session.

Piers Morgan, then Daily Mirror editor, said:

"This is a very good day for lying drug-abusing prima donnas who want to have their cake with the media, and the right to then shamelessly guzzle it with their Cristal champagne."

Now the best of friends, or in Piers Morgan's words,

"we kissed and made up a few years later."

"Gagging clauses" are in contracts of employment and this matter of secrecy could extend to matters of public concern. If a person is employed by another, they owe the employer a common law 'duty of confidence'. An emplyer also has 'confidence' that they can tell the emlployee secrets.

In 1990, Graham Pink was fired from the NHS for breach of confidentiality as he publically revealed the poor standards of care towards elderly patients at Stepping Hill.

In cases like this there are, there are duties to report it to the employer or to use internal greivance procedures. The idea is that things will go wrong from time to time in businesses anf the management of any business will put things right quickly and quietly if appropriate.

If somebody has a gagging clause, they are taking a huge risk in telling a journalist about their company without permission so many employees will refer you to the press office of their company or organisation.
An employee with a gagging clause can be instantly sacked without compensation for breach of contract or employment rather than confidence.
Therefore, a journalist must warn an employee they will face very severe penalties, if they are ever identified as the source. It is tge responsibilty of the journalist to protect that source.

Injunctions

A person who passes information to a journalist may have recieved it confidentially. If the confider discovers the information is ging to be revealed before the paper is published or the programme is broadcast, they can try to get a temporary injunction prohibiting publication of confidential matters.

It is easy for the person to get an injunction because they can say there's a danger of a crime hapenning, breach of confidence, and the injunction will prevent that crime. 

The Human Rights Act 1988 Section 12 intends to provide some protection against injunctions in matters involving freedom of expression. Section 12 says that if the journalist is not present when the application is made, the court must not grant an injunction unless it is satisfied the person seeking the injunction has taken all practicable steps to notify the journalist or that they are compelling reasons why the journalist should not be notified. 

In 1987 the Court of Appeal held that when an injunction is in force preventing a newspaper from publishing confidential information, other newspapers in England and Wales that know of the injunction can be guilty of contempt of court if they publish that information, even if they are not named in the injunction.