Page 127 - Law and the Media

Law and the Media
trial. Where hearings relate to journalistic material, the court must consider the extent to which
the material is available to the public, or whether it is in the public interest to publish it.

6.2 What is breach of confidence?

6.2.1 Elements of the right

In order to establish a breach of confidence, a claimant must show that:

The information has the necessary quality of confidence
The information was imparted in circumstances which imposed an obligation of
confidence, and
There has been or will be unauthorized use of the information.

6.2.2 Information having the necessary quality of confidence

It may seem obvious to say that in order to be confidential information must be secret, since
that is the whole idea of confidence. However, the ‘necessary quality of confidentiality’ is
not always a straightforward issue.

Any type of information, whether in written or oral form, can be confidential. This even
includes ideas. In Fraser v Thames TV (1984), a writer gave a television company an idea
in confidence for a television series. The company later made a similar television series
without involving the writer. The writer issued proceedings against the company and was
awarded damages for breach of confidence for the unauthorized use of his idea. The case
demonstrates how important it is to take care when discussing ideas for written articles or
television programmes. It can be difficult to show that an idea was independent and
original.

The law of confidentiality has recently been expanded to include unauthorized photography.
Breach of an obligation not to take photographs will give the claimant a cause of action on
the basis of an ‘imputed confidential relationship’ (see part 6.2.3 below). In Shelley Films v
Rex Features (1994) the claimant successfully prevented the defendant from using
photographs of a film set that the defendant had taken despite signs on the set banning
photography. In Creation Records Ltd v News Group Newspapers Limited (1997) a
photographer from the Sun took photographs during a photo shoot for the cover of a new
record by the rock group Oasis and published them in the newspaper, inviting readers to
purchase a poster version of the photographs. Although the photographer was lawfully at the
scene, the court held that the nature of the shoot and the imposition of security measures
made it arguable that the shoot was intended to be confidential and the photographer knew
he was only entitled to remain on the basis that he refrained from taking photographs. An
injunction was granted preventing the publication of the photographs.
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