Official Secrets Act: Breach of Confidence

Notes on breach of confidence aspect of official secrets act

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  • Created by: Jem
  • Created on: 03-05-13 14:13

Breach of Confidence

Traditionally, this was used to protect trade secrets, but nowadays it functions as a protection of privacy.

Breach of confidence was first used to protect national security information in AG v Jonethan Cape

Normally, the wronged people bring a breach of confidence case, not the AG; but Lord Widgery accepted that the AG had locus standi (ability to bring the case) because of his role in the administration of justice.  Issues of confidentiality did concern the AG.  Lord Widgery also outlined elements required for a successful case;

  • The publication is a breach of confidence
  • The public interest requires the publication to be restrained
  • (Defence) Is there a greater public interest need that requires the disclosure?
  • This last element must have an answer of no for an injunction to be granted
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Is the publication a breach of confidence?

AG must prove that info was confidential and was disclosed.

  • Certain pre-existing relationship automatically create a bond of confidence; e.g. marriage(Argyll v Argyll), employer/employee
  • Information imparted on the basis it’s confidential will be treated as confidential, Stephens v Avery.  The confidentiality is either expressly communicated or implied.
  • Newspapers are also bound by confidentiality when received information in breach of confidence; on the basis that a reasonable man would have realised the information should remain confidential due to its clearly private nature

Spycatcher(AG v Guardian, AG v The Times):  The info in the spycatcher book came fom employer/employee relationship, so the paper(Times) serialising the excerpts should have realised it was confidential.  The paper (Guardian) reporting on the Australian court case should have realised the info was confidential as it was sensitive.

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Does Pub Interest require publication restrained

  •  Trivial information is not confidential
  •  Info in the public domain is not confidential
  •  Info obtained through observation in semi-public places e.g. pubs, restaurants, may be confidential if it wasn’t intended to be a public announcement as in HRH Princess of Wales v MGN Newspapers Ltd and others
  • Info can have a broader definition than writing e.g. pictures as in HRH Princess of Wales
  •    Judge in spycatcher case; felt disclosure of info must cause some form of harm
  • ·         Disclosure directly from source material always appears to create necessary harm

    ·        Court of Human Rights; once info enters the public domain, the injunction must be lifted, as the focus isn’t on protecting national security, only the government from embarrassment.

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Does Public Interest require publication is restra

  •  Lord Advocate v The Scotsman: Similar to spycatcher, memoirs of MI6 agent.  Scottish paper couldn’t be prosecuted because the info disclosed by MI6 agent wasn’t damaging, as required by S.5 OSA 1989.  Also decided that publication was not against the public interest.
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Is there Greater Public Interest that Requires Dis

Even if the info is against the public interest to publish, it can still be proved that there is a greater public interest to publish it.

House of Lords; ‘disclosure of inequity (evil) might be a valid defence’

If confident info is disclosed to expose wrongdoings of others then the disclosure may be justified

In order to use defence must be:

Lord Keith: ‘a prima facie case that the allegations have a substance’ i.e. there must be actual evidence, not word of mouth

The fact that disclosures come from a member of security services alone doesn’t create a prima facie case in Spycather case.  Lord Griffiths, Lord Goff: disclosures should be made primarily to people in a position to investigate the wrongdoing; not the national press

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