Page 130 - Law and the Media

Breach of Confidence
Even if there is no term relating to confidentiality, the confidential nature of the agreement may
be so obviously intended by the transaction that a duty of confidence will be imposed.

Private employees
A contract of employment may contain terms that expressly prevent an employee from
disclosing information learned during the course of his employment. A contractual term
imposing a duty of confidence will be more likely if the employee has access to secret
information.

Even if his contract of employment does not contain an express confidentiality clause, an
employee owes an implied duty of ‘fidelity’ to his employer. This includes an obligation not
to disclose the trade secrets or confidential information of his employer. The duty is often
used to prevent an employee setting up in competition with his ex-employer, for example by
making use of lists of customers or other information taken from their employer. However,
it can also be used to prevent an employee from leaking information about his employer to
the media or other body.

The employee’s duty of confidence lasts for the whole period of employment. However, it
lingers on even after the end of the term of employment. It covers all information learned in
the course of employment. In Woodward v Hutchins (1977), the defendant, formerly
employed as public relations advisor for pop stars such as Tom Jones, exposed their secrets
in a newspaper. Although the defendant was bound by a duty of confidence, in the
circumstances of the case the court refused an injunction and allowed him to publish. The
court held that the pop stars had courted publicity and tried to create a particular image. If
that image was false, it was in the public interest that the record be set straight. The obvious
conclusion is that the court is prepared to let those who live by publicity die by publicity.

The court draws a distinction between ex-employees disclosing details that reveal the truth
about a false image and those who simply reveal private secrets. Employees of Buckingham
Palace who attempt to reveal private details about the Royal Family may be stopped by an
injunction. When one newspaper published details in the 1980s, as revealed to it by a Palace
servant, about Prince Andrew’s then girlfriend, under the headline ‘Koo’s Sex Romps at
Palace’, it ended up paying £4000 to charity for acknowledged breach of confidence. Other
famous employers have been swift to resort to the courts to preserve their privacy. In 2000,
Tony and Cherie Blair obtained an injunction to prevent the Mail on Sunday publishing their
ex-nanny’s story on the front page.

The duty of confidence applies to a member of the media who takes a job in order to find
out from the inside how a particular business or company works.

Government employees
An action for breach of confidence can also be used by the government to prevent employees
giving information about their work to the media, or to suppress embarrassing or politically
sensitive facts.
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