Media Law

Official secrets, Confidentiality and Privacy

Week 5

Official secrets concern government secrets, which if leaked, can lead to prosecution. The

Official Secrets Act 1911, with various amendments, is the leading statute concerning this area of confidentiality.
The six areas of the government that are protected by the act are:

• security and intelligence
• defence
• international relations
• foreign confidences
• information which might lead to the commission of crime
• the special investigation powers under the Interception of Communications Act 1985 and the Security Service Act 198
 

S.1 of the Official Secrets Act 1911 concerns information that is of use to the enemy and can result in up to 14 years in prison.

S.2 concerns 'silly secrets' of any establishment which comes under the branch of the government i.e. the post office and any internal information that is disclosed.

Clive Ponting
The leading case on this area is considered to be the Clive Ponting case. He was charged with leaking an internal Ministry of Defence document about the General Belgrano, the Argentinian cruiser which British forces sank during the 1982 Falklands war, which killed 360 people. Lady Thatcher's government claimed that the Belgrano was threatening British lives when it sank, but Ponting's document suggested that it in fact was sailing out of the exclusion zone, causing gross embarrassment to the government. Despite the judge indicating that the jury should convict him, he was cleared of any breach under the Official Secrets Act.

The 'Spycatcher' case
In 1987, former MI5 officer Peter Wright published a book named Spycatcher, alleging that in the 1960s, the MI5 conspired to discredit the Labour prime minister Harold Wilson. Thatcher's government claimed that Wright owed a duty throughout his life to the confidentiality of internal government activity. Despite this, Wright published his book in America and Australia, with copies making their way into the UK. The government then tried extraditing Wright, who was now living in Australia. A House of Lords judgement came in 1988, which overturned a blanket injunction across all media outlets from reporting information from former intelligence officers.
Lord Goff said: "In a free society, there is a continuing public interest that the workings of government should be open to scrutiny and criticism."

The Bill Goodwin case
In 1989, an engineering company, Tetra Ltd, who were in financial difficulties had prepared a business plan in order to obtain a substantial bank loan. A copy of the draft plan 'disappeared' from the company's offices and the next day Mr Goodwin received a telephone call from an unidentified source giving him information about the company. This included the amount of the anticipated loan and the forecast results for the company. Goodwin then proceeded to check this and so he phoned the company and its bankers. Tetra Ltd obtained injunctions against the magazine The Engineer and the trainee reporter Bill Goodwin. Goodwin and The Engineer were required to hand over notes disclosing the source of their information. Goodwin refused to do so and was fined £5,000. In 1996, the ECHR held that the court order and the fine violated his right to freedom of expression under Art 10 of the ECHR.

Sarah Tisdall
On a rare occasion one case did result in a prosecution: The young Foreign office clerk leaked details of when controversial American cruise missiles would be arriving on British soil, to The Guardian newspaper. She was found guilty under the Official Secrets Act and sentenced to six months imprisonment, although only serving three.

Commercial secrets which are governed by confidentiality common law.

 Privacy became a fundamental, residual right by the enactment of the Humans Right 1998.
 It is contained under Article 8 of the European Convention of Human Rights (ECHR) which covers the 'right to respect for private and family life'. 
The article states that:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

There is no set privacy law in the UK. So the judiciary are left to consider individual cases to determine how the privacy law is England will be determined.
Art 8 is always balanced against Art 10 of the ECHR - the freedom of expression.
In terms of Art 8, invasion of privacy is considered lawful if it has a clear public duty. For example, a policeman exercising an arrest in lawful.
However, problems of privacy may arise if photographs of the offender are published. Invasion of privacy is also legal if consent is obtained. Consent can be achieved in two ways: explicitly and implicitly.

 There are four factors that will 'define' if san incident can be rendered to be an invasion of one's privacy;
 1. If it has the necessary quality of confidence i.e. as Justice Eady commented 'not just tittle-tattle' and;
 2. it has been provided in 'circumstances imposing an obligation' and;
 3. there has been no permission to pass on the information and;
4. it has caused actual detriment.

The landmark area in this case is Campbell v MGN Ltd. The case concerned a photographs of Naomi Campbell coming out of a Narcotic Anonymous meeting. The "Mirror" then published these photographs which included pixilations of the faces of other attendees of the meeting. This was done in order to protect their identities. The headline alongside the photograph read "Naomi: I'm a drug addict". Attached was an article which contained very general details relating to Ms Campbell's treatment for drug addiction, which included the number of meetings that she had attended. Campbell claimed damages for breach of confidentiality and compensation under s.13 of the Data Protection act 1998. Morland J upheld both these claims at trial. The Court of appeal reversed this decision. Ms Campbell appealed this decision. The issue here was whether the publication of the additional information contained in the photographs along with the nature and details of Ms Campbell's treatment was a breach of confidence. In the House of Lords, the decision from the Court of Appeal was reversed by a 3:2 majority and it was held that the additional information was confidential as its publication would have caused substantial offence to a person of ordinary sensibilities in Ms Campbell's position. Ms Campbell's Article 8 rights outweighed the Defendant's Art 10 rights and so as a result the publication of the additional information was an infringement of Ms Campbell's Article 8 rights and she was entitled to damages. In light of this decision, it has been commented that similar to the decision in Reynolds v Times Newspapers, the House of Lords judgements create more questions than answers to how privacy law will work in the future. Giving practical advice to wannabe claimants on the scope of the law relating to privacy is now difficult.

In a Pennsylvanian court, a US couple lost their battle against Google, claiming that the street view technology 'invaded their privacy.' Aaron and Christine Boring accused the giant search engine of privacy violation, negligence, unjust enrichment and trespassing for showing their home in the street view technology, which adds 360-degree-street-level photographs to Google world maps. They were seeking more than $25,000 (£17,400) in compensation and damages. Judge Amy Hay said that the Borings could not prove they have suffered as a result of having their home photographed, as they had not contacted Google asking them to remove the images. In addition to this, the Borings had published their addresses on court documents.

 Privacy law has recently adorned legal websites such as IPkat, as more and more celebrities have been claiming their privacy has been without justification. These have come from the likes of Max Mosely, Sienna Miller and Tiger Woods. The most recent comes from the rumoured soon-to-be latest royal, Kate Middleton, who reportedly instructed solicitors, after photographs of her playing tennis in Germany were published. It is reported that Ms Middleton feels her privacy rights have been infringed and requests that the pictures be withdrawn from the publication and damages to be awarded from the photographers and distributing agency. The European Court of Human Rights later held that the UK's actions had violated the right to freedom of speech. In a neat historical detail, David Shayler - then editor of the Durham University student newspaper - also published some of Wright's allegations.