Confidentiality came to pass through the disturbing and vicious legislation, which is The Official Secrets act of 1989. This piece of legislation would destroy what we know as the public interest. This was done mainly in protection to national defence and security. Journalists were no longer allowed to publish any military and national defences secret in order to protect the country who were in the midsts of the first Gulf War. Therefore, the only loophole you had would be under article 10 of the European Human's right act where you could suggest that the information is vital as it has damaged national security and every member of the British population should be made aware.
A DA notice could be served at any time, which acted as a self-restraint on publications of any national security information or secrets. A recent example of this was during the recent phone hacking scandal in October 2011 the London Metropolitan police order The Guardian newspaper to provide them with evidence of potential phone hackers. However, the British press stood up and attacked the Met who in turn backed down and did not press ahead with their pursuit of the information from The Guardian.
Now secrets are something we all have and it can be anything from who we have a crush on (I am not saying, but we all know who it is) to who was responsible for putting the black hole in the most recent WINOL bulletin (that could be seen as a defamatory statement, but that again will have to wait for a later time). However, there are common law secrets that as Journalists we must all be aware of.
People have the right to have secrets and as long as it is not against the public interest, secrets can be passed on. However, if they are revealed then a breach of confidence has been reached and as a journalist you are liable to both criminal and civil action against not just yourself, but the media organisation you work for as well.
If you reveal secrets to a journalist then this has the potential to be a third party breach of confidence. Therefore, you must ensure that you always protect your sources, even if it means you face a spell in prison because as journalists there are hidden rules we must abide to and one of the most important is to always protect your source at any cost.
A prime example of this is the case of the Journalist; Bill Godwinn who in 1989 faced prison, but decided to protect his sources as he felt that if he did oblige by this is would be a break of trust and would show that journalists could not be trusted with keeping information private and who gave them the information. In 1993 the European Court of Human Rights order that the British government came to an agreement that protect sources was important and should not be breached unless severe public interest is common ground for the source to be revealed.
But, what actually constitutes a breach of confidence. In Mcnae's Essential Law for Journalists edition 21 they state for their to be a breach of confidence four things must first be established:
* The information must have "the necessary quality of confidence" E.G must not be made up or is just "hear-say."
* The information must have been imparted in circumstance imposing a obligation of confidence E.G. The person who has told you the information has asked for you to keep the information private and must not be passed on.
* There must be a unauthorised use of the information to the detriment of the party communicating it E.G. The information could personally affect the person involved and caused their reputation to be affected or even destroyed.
An example of this could be if I was to walk into the doctors and said that I had a rash on my hand. You telling them this information means that as a doctor they must keep this information secret as their duty with their patient to respect their wishes. However, if the doctor over the PA then ask the next patient to room 4 and says at the same time "Louis O'Brien has a rash on his hand", this is a breach of confidence as the information may be detrimental to myself.
Until the year 2000, confidentiality laws were used mainly to protect themselves from the threat of the media. But, the case involving the wedding photographs of Michael Douglas and Catherine Yeta-Jones and OK! magazine Hello! Magazine sued for breach of confidence. This was because Douglas has already agreed withe OK! Magazine that they would have exclusive right to the photos and had signed a contact with the financial agreement. However, it was established that a Hello! Magazine photographer had breach confidence by intruding (privacy) the wedding reception and was not a guest (breach of confidence).
The Judge justice Lindsay ruled in favours of the Douglas's and stated that "Privacy is a fundamental value and personal autotomy."
This brings me on nicely onto the second part of the lecture that focused on privacy. Privacy is centred around the Humans Right Act 1998 and the constant conflict that has continued ever since between Article 8 and Article 10. But, before we explain the conflict let's remind you and myself of what each Article entails
*Article 8 says that everyone has the right to respect got their private, family life. There must be no public interference by anyone unless their is a right in accordance with the law where there is a key public interest.
* Article 10 explains how everyone has their own right towards "Freedom of expression."
Privacy can also be described as "personal secrets". A breach of privacy can be established when it involve publication of someone personal or family life. It is very easy as a journalist to obtain photos, but do we have the right to broadcast or publish them?
Yes if we have the consent or if it is in the public interest, not just "in the interest of the public."
We do not have permission to use them if there has been no consent from the parties involved. Also do not assume that you can film someone because they are simply in a public place. This is very important to us on WINOL as we strive to be as careful as possible to who we film and where we film them. It is ok to film someone in the street, but do not film children in a school or have a extreme close up on someone on the street unless you are talking to them or they are directly affected by the story.
If we are looking for a example of a court case involving privacy then the case in 2004 of Princess Caroline of Monaco is ideal. The case revolved around the fact that pictures were taken of the Princess who was sat in a cafe, but at the very back away from sight of the general public, but no the cameras of the paparazzi who took pictures and published them. This led to Princess Caroline suing the publication under Article 8 and this case was taken to the European court. The ECHR ruled in favour of Princess Caroline as they felt that even under Article 8 she should be able to "enjoy social interaction with people."
This ruling meant that even famous people are allowed to have a private life even if it is in a public place. But, this was the first chapter in the story as this year the case was referred back to the ECHR who overruled the decision and felt that "newspapers should be able to publish stories about well-known people."
The judgement said that "They (Prince Caroline and her husband) were walking in a public place. therefore, the magazine had not infringed her privacy under Article 8."
This ruling is important as it means that we are not imposing as journalists if we take photos of celebrities and famous people in public places, but we have to be careful under what circumstances and what situation they are in when we taken them or decide to publish them.
If a person is not happy about a photo or some information that is about to published then they can take out a Injunction, which will put a pause in the publication. Injunction does not just stop the publication who was going to publish the information from using it, it stop all publications from broadcasting the information anywhere to anyone. Celebrities with deep pockets are prime examples of people who will file injunctions as they know they have the ability to deter journalists and media publications from broadcasting or publishing their information to a wide audience.
If you breach a injunction you are liable for Contempt of Court and may face a prison sentence, as well as a heavy fine for your and your employer.
Super-Injunctions is a injunction to stop another injunction being released a prime example of this is the case of the affair of Manchester United Footballer; Ryan Giggs. Giggs was having a affair, but took out a super-injunction to the stop this information being released. However, Member's of Parliament have the right to break a super-injunction using parliamentary privilege, which gives them to right to say things if they are in the public interest. This resulted in the follow newspaper front page:
The case involving former president of the F.I.A Max Mosley is significant. Mosley was involved in a sexual group act involving prostitutes taking part in Nazi-based sex acts, which even included the prostitutes being dressed as people from Concentration Camps. The News of the World published the story, comparing Mosley to his father; Oswald Mosley who was a fascist leader and had close ties to Adolf Hitler in the 1930's.
Mosley felt that the newspaper was in breach of his rights to respect his privacy and family life because the media had not been obliged to give away the information or publish it. his lawyer Mr Justice Eady ruled that "the women who was the paper's informant had a duty of confidence to Mr Mosley."
However in 2011 ECHR ruled against Mr Mosley against journalist having to let subjects know prior notification before a story is published about them.
I think that is enough for this week and I think that I have learnt that all secrets I will be keeping to myself from now on!
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