Page 135 - Law and the Media

Law and the Media
6.3.1 Public domain

Confidentiality will not generally 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.

It may not be enough for the defendant to show that the information is already available to
the public in some form. Just because information has been published in an obscure journal
does not mean that it can be broadcast on national television. However, if confidential
information about private individuals is available in a form that is generally available to the
public, it is much less likely that a claimant will bring an action for breach of confidence. The
Internet has had a profound effect on the availability of information to the public, and may
assist a defendant who defends on the basis of public domain.

In contrast, government information that has only been published in a small circulation
newsletter abroad has not in the past prevented the Attorney General commencing
proceedings for breach of confidence.

Section 12(4)(a)(i) of the Human Rights Act 1998 will make it more difficult to obtain an
injunction to prevent the publication of confidential information which has been, or is about
to be, published.

6.3.2 Consent
If the owner of information consents to its publication, he cannot later attempt to restrain its
disclosure. Once the owner of information has consented to its going into the public domain,
any rights in confidence are lost.

It is important to obtain consent from the right person. Any consent must be given by the
owner or ‘confider’. Although a lawyer may be happy to reveal the sordid secrets of a client,
this consent is insufficient because the information belongs to the client.

6.3.3 Iniquity
The defence of ‘iniquity’, sometimes referred to as the defence of ‘public interest’, is one of
the most important defences for the media. The court will not intervene to prevent the
publication of information that concerns an iniquity. The public interest in publication of
information about an iniquity outweighs the public interest in confidentiality. There is no
confidence in the disclosure of an iniquity.

Iniquity is only a defence for an action for breach of confidence. It will not be a good defence
to an application for an injunction.
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