Page 133 - Law and the Media

Law and the Media
In the past, ‘kiss-and-tell’ revelations, particularly those concerning a married person in an
adulterous relationship, were unlikely to enjoy the protection of the law of confidence. In
1988 a male barrister tried to prevent publication in the Sun of letters he had written to his
male lover. The court held that there was no confidentiality in a ‘transient homosexual
relationship’. However, in 1997 the television personality Michael Barrymore succeeded in
obtaining an injunction against the Sun restraining further publication of information
regarding his previous relationship with a man (Barrymore v News Group Newspapers
(1997)). The court followed the reasoning in Stephens v Avery, and said:

. . . common sense dictates that when people enter into a personal relationship of
this nature it is not done for the purpose of publication in newspapers; the
information about the relationship was for the relationship and not for some
wider purpose . . . when people kiss and later one of them tells, the second
person is almost certainly breaking a confidential arrangement, although this
might not be the case if they merely indicate that there had been a relationship
and do not go into detail. In this case the article went into detail about the
relationship and therefore crossed the line into arguable breach of confidence.

Doctor and patient
The court has emphasized the public interest in preserving the confidentiality of medical
records. In X v Y (1988), the News of the World obtained information from local health
authority medical records that showed that two of its doctors were suffering from AIDS
but were still in practice. The information had been provided by an employee at the
hospital treating the doctors.

The health authority issued proceedings in order to prevent publication of its confidential
information. The court granted a permanent injunction to restrain publication of the
confidential information. It held that discussion of the issues of public importance was
permissible, for example whether there was any danger to patients who were being treated
by a doctor with AIDS. However, it ruled that the doctors and their places of work could
not be identified. If people suffering from AIDS decided not to seek medical assistance
because of a fear that their condition would be made public, that would be detrimental to
the public interest. Medical confidentiality prevents a doctor from revealing that a patient
has AIDS, even to another member of the patient’s family who may be affected by the
illness.

The issue of whether information provided by a child to a doctor should be kept
confidential from a parent was considered in Gillick v West Norfolk & Wisbech Health
Authority (1986). In particular, the House of Lords considered whether a doctor must tell
the parents of a child if their daughter under the age of 16 years sought contraceptive
advice. The court held that if a girl under 16 years of age had sufficient maturity and
intelligence to understand the nature and implications of the proposed medical treatment,
she had the legal capacity to consent to such treatment. The parental right to control a
minor child would therefore depend on the degree of intelligence of the particular child.
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