Page 134 - Law and the Media

Breach of Confidence
The court also held that there may be exceptional cases where it might be desirable for a
doctor to give a girl contraceptive advice and treatment, if necessary without the consent
or even knowledge of her parents, if it was in her best interests and the doctor could not
persuade her to inform her parents or allow him to inform her parents that she sought
contraceptive advice.

Other confidential relationships
Information given by clients to their lawyers is confidential and will be protected by legal
privilege. Information provided by a parishioner to a priest is also confidential. A member
of the Cabinet owes a duty of confidence to other members of the government (A-G v
Jonathan Cape (1976)). It is open to question as to whether information provided by a
child to a teacher is subject to an obligation of confidence, or whether the media can try
to obtain private information from teachers about children of famous people.

Third parties
A third party who is in receipt of confidential material that he knew or ought to have known
was subject to confidence may also be prevented from publishing the information.

The media and sources
The obligation of confidence extends beyond the original parties involved to any third person
who receives the information knowing of the breach of confidence. Liability of a third party
often arises where information of confidential information is provided to the media and
published in breach of that confidence. The newspaper or television company will often be
party to the proceedings, along with the person who broke the confidence.

If a person says ‘I shouldn’t tell you this, but . . .’, the writer or broadcaster will be put on
notice of a potential breach of confidence but may be able to establish a defence to any action
for breach of confidence. However, in cases involving information provided by current or
former employees about their employers or information concerning a person’s medical
history, there is a danger the court will take the view that the writer or broadcaster should
have known a confidence was being broken simply by the confidential nature of the
information itself. In such circumstances, a defence will be much more difficult to
establish.

6.3 Defences

Several defences are available to an action for breach of confidence:

The information is not ‘confidential’ because it is in the public domain
The owner of the information has permitted its publication
The information discloses ‘iniquity’
The public interest requires publication.
97