The law seeks to protect confidential information by preventing those who have obtained confidential information from taking unfair advantage of it, for example an employee improperly divulging the secrets of his/her employer.
Historically, the courts required that a 'relationship' of confidence existed between the person seeking to disclose information and the person seeking to protect it e.g. employer/employee. However, the relationship of confidence has been greatly expanded and now, as long as the surrounding circumstances denote that the information is confidential, this will suffice for the purposes of seeking the protection of the law.
Often, particularly in current affairs programmes, programme-makers and broadcasters will come by information that is clearly confidential and the question arises whether or not there is justification to publish that information to a wider audience.
Wherever a programme may reveal confidential information, advice must be sought from the programme lawyer at an early stage.
How Confidential Information is Protected
If a broadcaster publishes confidential information without authorisation, then the individual or organisation whose confidence has been betrayed may be able to sue the broadcaster for damages. In addition, if the individual or organisation becomes aware of the intention to divulge the confidential information before broadcast, they will often apply to the court for an interim injunction i.e. a temporary order preventing broadcast until the matter can properly be decided at a later trial. Note: a pre-transmission injunction based on the law of confidence is one of the easiest ways for an individual or organisation to stop programmes being broadcast.
If an interim injunction is granted, even against some other media organisation, all media organisations who are aware of the injunction will be similarly bound by it. To breach an injunction is to commit contempt - a criminal offence.
The law of confidence has been widely used to prevent publication of all kinds of confidential information, for example companies use it to prevent their commercial and trade secrets being divulged; governments use it (often in conjunction with Official Secrets legislation) to prevent defence and intelligence staff and, in turn, journalists from divulging protected information which could be damaging to the national interest; and individuals including celebrities and politicians have used it to try to keep matters about their personal lives private (more recently using 'misuse of private information' as a cause of action). Moreover in some factual situations causes of action in both breach of confidence and misuse of private information will coexist.
Public Interest Defence
The main defence to any legal action for breach of confidence, or an application for an injunction based on confidence, is that there is an overriding public interest in publication - the public interest in publication is greater than the public interest in maintaining the confidence.
In resisting any application for an injunction or any action for damages, it would be up to the broadcaster to establish that publication/broadcast was in the public interest, for example it was necessary to expose crime, corruption, anti-social behaviour or injustice.
The Director of Public Prosecutions has issued guidance saying that the issue of public interest must be considered before journalists are prosecuted in connection with news gathering activities.
Confidential Information Protected by Contract
Confidential information may also be protected by the law of contract, for example employers may make it a term of their employment contracts that staff are bound not to disclose confidential or private information to third parties which they have come to know as a result of their employment. Whether a court will act to enforce such confidentiality clauses will normally turn on the nature of the confidential information to be disclosed and whether, in all the circumstances, it is in the public interest that the confidentiality clause be enforced or not. Employees or whistle-blowers are now further protected under the Public Interest Disclosure Act 1998, where they are dismissed or victimised for making a protected disclosure of information.
To gain protection from dismissal as a "protected disclosure" a whistleblower would normally have to raise his concern to his employer or a designated body (who are mainly regulatory bodies such as the Bank of England, Charity Commissioners, Food Standards Agency). It could be grounds for dismissal if a whistleblower did not raise the issue internally or to a body designated under the Act – i.e. not much protection. Since April 2014 the list of those to whom disclosures can be made to become a "protected disclosure" has been extended to MPs. In practical terms this means if a journalist is contacted by a whistleblower about concerns / issues at work, some protection may be gained for the whistleblower by raising the issue with an MP.