Page 126 - Law and the Media

6 Breach of Confidence

Joanna Ludlam

6.1 Introduction

The English law protects an individual from the misuse of personal information about him
under common law and statute. The common law of breach of confidence protects
information that is ‘confidential’. The Data Protection Act 1998, considered in Chapter 7,
protects personal data.

The law of breach of confidence is based on a 1848 case in which Prince Albert obtained an
injunction to prevent the exhibition of etchings by himself and Queen Victoria in
circumstances where the defendant had obtained copies of the etchings without consent.
Although the law was subsequently developed to protect secret processes, inventions and
trade secrets, its boundaries have been constantly pushed back, and in recent years it has been
used more and more to prevent the publication of ‘confidential’ information in the media.

An action for breach of confidence and an injunction is the most appropriate method for an
individual to prevent the publication of confidential information about him. It is relatively
easy for a claimant to obtain an injunction restraining publication. Such an order, known as
a ‘blanket ban’, will prevent publication of the confidential information itself as well as the
fact that legal action has been taken by the claimant. Because the cost of taking an action to
trial frequently deters the defendant from any further resistance, confidential information
often never sees the light of day. The result is that an action for breach of confidence has
become one of the most significant fetters on freedom of expression in the media.

Actions for breach of confidence are also frequently used by the Government as an effective
alternative to a prosecution under the Official Secrets Act 1989.

However, Article 10 of the European Convention on Human Rights, right to freedom of
expression, introduced into English law by the Human Rights Act 1998, is now the starting
point for all cases involving restrictions on freedom of expression. As a result, the law of
confidence may cease to be such an effective tool for restraining the media. Section 12 of the
Human Rights Act 1998 prevents hearings made in the absence of the defendant, a common
occurrence in breach of confidence applications, unless there are compelling reasons why the
defendant should not be notified. Interim injunctions restraining publication are prohibited
unless the court is satisfied that the claimant is likely to establish the restraint of publication at