Page 128 - Law and the Media

Breach of Confidence
Confidentiality will not usually attach to information that is already general public
knowledge or in the public domain. The question of whether the information has already
been so widely published as to destroy its confidentiality will depend on the facts of each
case. In circumstances where the marital secrets of John Lennon and his first wife, Cynthia,
had been published by both parties in a number of articles in the past, the court held that the
marriage had been placed in the public domain and refused to grant Lennon an injunction to
prevent Cynthia selling further stories about the marriage to the News of the World (Lennon
v News Group Newspapers (1978)). Similarly, when Jack Straw attempted to obtain an
injunction in 2000 to prevent the publication of a newspaper article in the Sun newspaper
about the supply of cannabis by his son to the newspaper’s reporter, the court ruled that an
injunction could not be granted as the information was already in the public domain.

By contrast, also in 2000 Prime Minister Tony Blair and his wife Cherie applied for an
injunction to prevent the publication of the memoirs of their former nanny in the Mail on
Sunday. By the time the application was heard by the court, some 1.5 million copies were off
the press and in the distribution chain, firmly placing the information in the public domain.
However, the court granted the Blairs an injunction to prevent publication on the grounds
that the nanny was in breach of her duty of confidentiality to the Blairs as set out in her
contract of employment, despite the fact it was too late to undo the damage. It is arguable that
granting the injunction was inconsistent with established law. When information is already
in the public domain, the courts are usually not prepared to grant injunctive relief and restrict
the claim only to damages.

In some cases, a claimant can even obtain an injunction for breach of confidence to restrain
publication of information that is already available to the public from other sources. In
Schering Chemicals v Falkman (1982), a television executive who had been asked to train
employees of a chemical company in television techniques decided to make a programme
about one of the company’s drugs, which had been alleged to cause birth defects in children.
Although the television executive had been given confidential information by the company
as part of the training course, the relevant information for the programme was gathered from
public sources. However, the court ordered that the programme should not be shown. It held
that the television executive had abused his position of trust and could not be allowed to
profit from such an abuse.

The court is faced with considerable difficulty when asked to prevent publication of material
in England that has already been published abroad. The English law of confidence is very
different to the law of other countries, notably the United States, where it is difficult to
regulate reporting restrictions because of the First Amendment to the Constitution, which
protects freedom of speech. The Spycatcher case is the best-known example. In 1986 the
Government obtained interim injunctions that prevented certain newspapers from publishing
allegations made by a former senior MI5 officer Peter Wright in his memoirs, Spycatcher. In
1987 the House of Lords ordered the continuation of the injunctions, although by that stage
Spycatcher had already been published in the United States and the major allegations in the
book had been reported by the press and television in the United Kingdom, as well as world
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