Secret squirrel

Last week's Media Law session was on the subjects of Confidentiality and Privacy.  The three main areas covered were:

- State secrets as covered by the Official Secrets Act
- Commercial secrets which are covered by Common Law Confidentiality
- Privacy as covered by the Human Rights Act, Section 8.



For us as journalists the main danger in the Official Secrets Act (OSA), other than trying to buy a manual off a squaddie in Aldershot pubs, was inadvertently getting premises covered by the OSA into 'wallpaper' shots, or revealing too much about the location of armed forces personnel in newspaper or radio reports.

Commercial secrets also seem to be pretty straighforward: we all have a right to keep secrets as long as it isn't against the public interest so to do, and we also have the right to expect confidences to be kept by people such as our doctor, lawyer, family members or employees.  As journalists the danger seems to be getting dragged into a 'Third Party breach of confidence' when we hear something that really should have been kept secret.   In such instances, the quality of the information is key - tittle tattle isn't covered by this.  Also important are the circumstances in which the confidence was given - e.g. in a doctor's consultation - and the test is what our old friend 'the reasonable person' would think.  The other criteria are lack of permission to pass on the information, and the likelihood of detriment being caused.  Overall, it does seem like common sense stuff.

Privacy seems to be the most interesting of the areas covered, and the Independent recently revealed that the number of attempts to get gagging orders by 'celebrities' has increased by more than 50% in the past year - this seems like an area that's bucking the recessionary trend!  Wayne Rooney's name featured large in their article but I'm totally bored by his exploits so I think I'll simply ignore him.  However, whilst I wasn't surprised to hear that Tiger Woods had resorted to law, I hadn't realised that Ryder Cup captain Colin Montgomerie had recently won a super injunction to prevent a tabloid revealing aspects of his private life - the danger in such actions is that people like me now wonder what it is that I'm not being allowed to hear!

Apparently, privacy cases from high-profile individuals made up 21 per cent of total privacy cases in 2010, compared with just 7 per cent in 2009, and overall, the use of privacy arguments in UK court cases has soared by 54 per cent in the past year, fuelled largely by a surge in claims against public-sector organisations, says Sweet & Maxwell, the legal publishers.

The Independent went on to say that the number of reported court cases where a privacy argument was used is up from 28 in 2009 to 43 in the past year, and that lawyers believe that because these figures are based on published cases, the true number is even higher.

Jonathan Cooper, a leading barrister on privacy matters, said: "Privacy rights cannot be used to undermine free speech, and vice versa. Where there is a public interest in interfering with privacy rights, the media must be entitled to publish.  There is a real fear that emergency injunctions are becoming increasingly common, whereby a judge can grant an interim injunction at very short notice without a full and proper hearing."

The 'Indie' then listed just some of the 2009 gagging injunctions, including Madonna winning a sizeable amount from one of the Sunday papers over the publication of her wedding photos, Tiger Woods trying to limit the damage to his already sullied reputation, John Terry's daft attempt to stop the publication of articles alleging an affair with Vanessa Perroncel (see my earlier blog on that topic), and what is says are at least three footballers trying to prevent revelations about their priivate lives.

And then there was the supermodel Naomi Campbell who claimed her former employee Vanessa Frisbee had breached her privacy and confidence by selling information to a newspaper about her romantic life, and other 'celebrities' such as Sienna Miller, Lily Allen and Amy Winehouse who have started to use harassment injunctions to protect them from being hounded by photo agencies and paparazzi photographers.

It's for the lawyers and judges to decide what is a contravention of the law on these matters, but as a layman the old phrase ' them that lives by the sword, dies by the sword' seems to have some validity in these instances.  If a person doesn't seek to use the press to publicise their private life for financial reward then they should be entitled to have their privacy respected unless it's genuinely in the public interest for revelations to be made.  However, if a 'celeb' ruthlessly exploits their private life to earn money or further their reputation - wedding photos in 'Hello', exclusives to their chosen tabloid, and so on - then from this layman's perspective I'd let the papers publish and be damned.  If what they print is defamatory then they'll rightly get sued, but if it has substance, then maybe their previous exploitation of the press should remove an individual's right to privacy.  Too sensible to happen I'm afraid!