Media Law: Privacy and Confidentiality

As with most aspects of media law, privacy and confidentiality laws are derived from wide-ranging acts and laws. Specifically from Section Eight of the Human Rights Act. This specific section affords any individual the right to a private life.

The only way around privacy laws is with consent, of which there are two types: Explicit and Implicit. Explicit consent comes in the form of a consent form or some type of document that states in black and white that (for example) a photographer can take a picture. Implied consent is a on slightly shakier legal ground but still holds sway. If for example, the European Cup Final is held at Wembley and Prince William is the official who hands over the trophy to the winning team then consent is implicit. The Prince knows that he is at a public event and that there are thousands in the stadium and millions of other people watching world-wide so therefore he cannot claim an invasion of privacy.

Confidentiality is the other face of this double-headed legal coin and is there to protect two specific types of secret. The bigger of the two fish in the frying pan is the protection of state secrets. Under the Official Secrets Act 1911, it is considered an act of treason to give away state secrets to an enemy (Spooks is also educational as well as thoroughly entertaining!). The other side of confidentiality relates to Common Law secrets. This ranges from business or trade/commercial secrets right down to family secrets.

Often in the commercial world, employers put gagging clauses in employees' contracts in order to legally prevent them from giving away secrets or "whistleblowing". Whistleblowers were in fact the reason behind many employers gagging employees. One of the most famous cases is the Graham Pink case. His 'whistleblowing' alerted people to the poor state of an NHS hospital. From a journalists' point of view, whistleblowers are vital in helping to fulfill the role of the 'fourth estate' and many helplines and websites have been set up to help whistleblowers confidentially tell journalists of problems particularly in public organisations like the NHS.

Finally, confidence is breached if: it carries the necessary quality of confidence. An official state secret carries a higher quality of confidence compared to letting people know that your girlfriend is a closet Star Trek fan for example. However, under the right circumstances something as ridiculous as your girlfriend being a closet Star Trek fan could amount to breach of confidence IF she has not given you permission to broach the subject and if it has caused ACTUAL detriment. If she returns to work and is shunned and avoided she can claim that confidence has been breached. Unlike libel laws where an individual can prove that information COULD cause detriment, confidence is only breached when it has actually caused damage to a person's reputation.