Page 136 - Law and the Media

Breach of Confidence
There is no exact meaning for iniquity. It is a wrongdoing or an act of wickedness. It includes
crimes, suspected criminal conduct, financial malpractice and police corruption. In Cork v
McVicar (1984) a journalist conducted an interview with a former officer of the Metropolitan
Police about police corruption. Unknown to the former officer the journalist had a concealed
tape recorder, which he used to tape ‘off the record’ parts of the conversation. Despite the
breach of confidence, the court refused to prevent publication of the story based on the secret
tapes because the information clearly revealed allegations of police corruption and
miscarriages of justice. However, it is not clear how far the concept extends to lesser
wrongs.

In some cases, it may be difficult for the defendant to prove actual iniquity on the part of the
claimant. The defendant may be assisted by the disclosure of relevant documents in the
course of the proceedings for breach of confidence. For example, if a television programme
alleges financial malpractice by a company and proceedings are issued, it will be entitled to
disclosure of the claimant company’s relevant accounts and records. However, in cases
concerning the government the court may not order the disclosure of certain documents.

Fortunately, the defence does not depend upon proof by the defendant of the iniquity of the
person who alleges breach of confidence. Rather, the issue before the court is the weighing
of the public interest in allowing publication of information relating to wrongdoing against
the public interest in confidentiality. In A-G v Guardian Newspapers Ltd (No 2) (1988),
certain newspapers wished to publish allegations by Peter Wright, a former senior officer,
about the activities of MI5. The Court of Appeal found that some of the allegations clearly
revealed iniquity, namely that the former Director General of MI5 had been a Soviet agent
and that MI5 officers had conspired to overthrow the government of Harold Wilson, but it
could not reach a unanimous view as to whether every ‘bugging and burglary’ would amount
to iniquity. However, it held that it in cases of iniquity it was not necessary for the defendant
to prove that the allegations were true, although before publication the media should:

Assess the authenticity of the source
Carry out any possible investigations to corroborate the allegations
Give due weight to the findings of any investigations that had already taken place
into the allegations.

In effect, this case demonstrates that editors and producers must act ‘responsibly’ and must
consider the possible harm that may be done if a confidence is broken. The guidelines relieve
the media of the need to be able to prove the truth of their publications by legally admissible
evidence, and are particularly helpful to investigative reporters.

There is a limitation on the defence of iniquity, which impacts on the media. The court may
find that a breach of confidence is justified on the grounds of iniquity, but only to the extent
that the information may be handed to the appropriate authority, such as an employer or the
police, and not published to the general public. In Francome v Mirror Group (1984) a
newspaper was given transcripts of the telephone conversations of a leading jockey. The
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