Page 153 - Law and the Media

Law and the Media
wished to ‘realize’ valuable papers belonging to Aitken that were personal to him in a variety
of ways. The papers ranged from letters to heads of State and former ministers through to so-
called ‘intimate’ correspondence. As a matter of insolvency law, it was recognized by the
court that, because Aitken was a bankrupt, his estate should be transferred to the trustee in
bankruptcy for him to ‘realize’ it – in other words sell it – for the benefit of Aitken’s
creditors. However, the court upheld Aitken’s arguments that, given their personal nature, the
documents ought not to be sold because they were protected by Article 8.

8.2.2 Breach of confidence

The law of confidence offers some protection against abuse or unauthorized use of
confidential information. Breach of confidence may give rise to a claim for an invasion of
privacy. This has been the case in the taking of unauthorized photographs or film of a person
or his home. Founded on a ‘confidential relationship’ as found by the court in the Spycatcher
case (A-G v Guardian Newspapers Ltd (No 2) (1990)), it has been held that a breach of an
obligation not to take photographs may allow a claimant to bring action for breach of
confidence. In Shelley Films v Rex Features (1994), the defendant was prevented from using
photographs taken on a film-set that had signs prohibiting photography. In Creation Records
v News Group Newspapers Limited (1997), a photographer from the Sun published
photographs taken during a photo shoot for the cover of a new record by the rock group
Oasis. Although the photographer was lawfully at the scene, the court found that the security
measures at the shoot made it arguable it was intended to be confidential. An injunction was
granted preventing the publication of the photographs.

However, in other areas it has been a difficult task for the courts to balance the absolute
protection of privacy with the public interest. In the past, authors of books containing
confidential government material, such as Peter Wright, who retired from MI5 to Tasmania
and authored Spycatcher, faced litigation by the Government in order to prevent publication
and the possibility of prosecution under the Official Secrets Act 1989.

In its first decision in the Spycatcher affair (A-G v Guardian Newspapers (1987)), the House
of Lords upheld an injunction (by a majority of only three to two) against several newspapers
who wished to publish serializations of Spycatcher on the eve of the book’s publication in
the United States. In its second decision (A-G v Guardian Newspapers Ltd (No 2) (1990)),
the House of Lords decided not to grant a permanent injunction. It is doubtful whether the
House of Lords preferred to safeguard free speech over maintaining confidentiality, since this
decision was largely based on the fact that the confidentiality had already been broken and
no such duty was owed by third parties. The House of Lords adopted a pragmatic stance and
found that a permanent injunction in the United Kingdom was rendered futile in view of the
fact the material had already been published abroad. However, the court noted that:

. . . the right to personal privacy is clearly one which the law should in this field
seek to protect...
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