- Q. A potential contributor has signed a confidentiality agreement. Can we even talk to them? The contributor has asked for an indemnity against any breach of their agreement. Can we give one?
A. As part of their research, programme-makers and journalists can speak with and interview potential contributors who have signed a confidentiality agreement, as is often the case with employees. Any such confidentiality agreement binds the individual who has signed it. There is no legal liability for the programme-maker who simply receives the information. However, if the programme-makers and broadcaster wish to broadcast that information, there are a number of questions which need to be asked and decisions made.
Firstly, it is important to be clear about the exact terms of the confidentiality agreement and what information it covers. If possible, try to obtain a copy of the agreement. Secondly, a decision needs to be taken as to what parts of the information supplied by the contributor are likely to be covered by the confidentiality agreement. Thirdly, not everything which the confidentiality clause seeks to cover may actually be confidential information. Finally, once it is clear what information is covered, a decision will be taken as to whether publication/broadcast of that information is justified e.g. by the public interest.
Note: regardless of whether there is an express confidentiality clause, there is an implied term in employment contracts that employees and former employees owe a duty not to disclose the confidential information of their employers.
In practical terms, as soon as it is known or suspected that a potential contributor or source is the subject of a confidentiality agreement, sometimes called a 'gagging clause', this must be referred to the programme lawyer for advice.
Sometimes a contributor will ask for an indemnity - a written, contractual assurance that if they are sued for breaching the terms of the confidentiality agreement which they have signed, the production company and/or broadcaster will cover all their legal costs and any potential damages they may have to pay - which might include a loss of pension rights. Such an assurance should never be given or even suggested by a programme-maker before referring the matter to the programme lawyer for advice. In most cases, there will be very good reasons for not giving an indemnity.
Furthermore, no payment should be made or promised to a source or contributor who may be providing confidential information, before seeking advice from the programme lawyer.
The giving of an indemnity or the making of a promise of a payment may constitute an inducement to a breach of confidentiality for which both the programme makers and Channel 4 may be liable. This would be used against the broadcaster and programme makers in any application for an interim injunction.
- Q. The information is protected by a confidentiality agreement but it was revealed to us by a third party, who is not a party to the agreement. Can we go ahead and broadcast it?
A. Assuming that the information really is confidential, a third party such as a broadcaster, who is in receipt of that information, which it is known or suspected is subject to a duty of confidence, may also be prevented from broadcasting that information under the law of confidence.
For example, say a government minister was in serious debt and had defaulted on his mortgage payments. His secretary (who has signed a confidentiality agreement) is aware of this and has access to documents which prove this. The secretary's husband, who has not signed a confidentiality agreement, comes across the memoranda and decides to pass these on to a current affairs television journalist, without telling his wife. Can the information and the documents be broadcast?
The answer is that the information is almost certainly confidential (and private information) and both the secretary’s husband and the journalist/broadcaster would know or suspect that it was. If/when the minister discovered the information was to be broadcast he/she would be entitled to use the law of confidence (and/or misuse of private information) in order to try to restrain broadcast by an injunction and/or, following broadcast, to seek damages. Whether or not that legal action would be successful would depend on whether, in all the circumstances, the court decided that broadcast of the confidential information was in the public interest or not.
As noted above, wherever it is intended to broadcast information which might be confidential and/or the subject of a confidentiality agreement, please refer to the programme lawyer for advice.
- Q. The subject of an investigation is demanding to see all our rushes on the basis of data protection law. What we should do?
A. In short, refer the request to the programme lawyer immediately. Prior to broadcast of the programme, any request to see rushes is very unlikely to be granted since the material is likely to fall squarely within the 'journalistic exemption'. Following transmission of the programme, whether or not any such request would be granted would depend on the particular circumstances.