Privacy, Confidence & Data Protection

Key Points

English law recognises a right to privacy – misuse of private information - and will intervene to protect individuals' privacy rights.

A court which is considering granting an injunction preventing broadcast of a television programme on the basis of an infringement of privacy must consider whether it is in the public interest for the material to be published and also the extent to which the broadcaster has complied with the Ofcom Broadcasting Code. Accordingly, compliance with the privacy rules and practices contained within the Code is likely to ensure a programme complies with the law.

The Protection from Harassment Act 1997 makes it a criminal offence to engage in a course of conduct which amounts to harassment and also offers civil remedies. There is no specific defence for journalists. Amendments in November 2012 created more serious offences relating to activities which amount to 'stalking'.

The law protects confidential information from being improperly divulged. If a party whose confidence is about to be betrayed becomes aware of it before broadcast, they may apply for an injunction. If successful, the programme will not be able to be broadcast. The law of confidence can be one of the easiest ways for an individual or organisation to use the law to stop a programme being broadcast.

If an interim injunction (temporary court order pending trial) is granted by a court, all media organisations aware of its existence are similarly bound. Breaching an injunction is to commit contempt - a criminal offence.

The main defence to any legal action for breach of confidence is that there is an overriding public interest in publication, for example to expose crime, corruption, anti-social behaviour or injustice. See explanation of 'Public Interest'.

Broadcasters and programme-makers must comply with the provisions of the Data Protection Act 2018 and the GDPR, which protects individuals' personal privacy rights and the way personal information ('personal data') about them is gathered, 'processed' and stored. The act contains a number of principles that people 'processing' personal data, including programme-makers, journalists and editorial staff, must comply with and provides even greater protection to special categories of data (such as race, criminal history, religious beliefs or sex life). It also grants the data subject a number of rights in relation to the information that organisations hold about them.
Personal information which is processed only for journalistic purposes may be exempt from many provisions of the Data Protection Act which otherwise would stifle and prohibit honest journalistic practices. However, the journalistic exemption only applies in certain circumstances.