Theakston v MGN Ltd [2002] EMLR 22
-    T was a celebrity in England – gave interview in relation to private life and sexual details
-    visited a brothel – on drugs and drunk
-    2 prostitutes – and interacted with them in a variety of sexual acts
-    Pimp took photos of him and blackmailed T – wanted a large amount of money – said they would leak to the media
-    Sold the photos to a Sunday newspaper – who contacted T and in turn sought an Injunction to the story
-    Issue: information – what was the information being conveyed here?
o    Issue of characterising the information
-    Issue: objective
-    Court issued an Injunction
-    1.     There are two types of information here: written word and photographs
o    Written word – statement of basic facts, and detailed exposition of what had occurred
o    Photographs: they convey information much more readily and with much more impact then the written word – different typed of information then the written word – more provocative
o    Different consideration apply – what was written was hardly offensive
-    2. Was this offensive to an ordinary person?
o    Equity- as a general rule treats as confidential information in relation to marriages and de facto relationships ( sexual )
o    They didn’t view the information as confidential – was unable to establish a relationship of confidence between the parties
o    Conflict between T and the Prostitutes – who want to express there freedom of expression
-    3.Injuntions
o    Withheld the photos as they were most detailed and offensive
o    However allowed the detailed account of what happened in the publication
o    Draws a fine line between photographic representation and written representation.

Creation Records Ltd v News Group Newspapers Ltd (1997) 39 IPR 1
-    Rock band oasis – how much control can you have over the photos of a location – Oasis were filming a cover for their new album with a Rolls Royce in the bottom of the pool. At the time a photographer [Seeburg] booked in as a guest and although guests were allowed to take photos, they were not allowed to take photos of the stage setup – it was surreptitiously taken. Seeburg was an invitee of the hotel and presumably had an implied licence to walk around the hotel and he said that there was no real attempt to stop him from taking photos. The magazine had said that there was a ring of security around him but that they had managed to get the photo.
Surreptitious acquisition of confidential information
-    ‘Mr Seeburg must have been aware of the efforts to prevent people taking photographs of the shoot and can only have succeeded in doing so but being surreptitious and far from being as open as he himself deposes… By evading the security efforts by luck or guile he nevertheless acted in breach of the confidentiality to which the scene was subject.’ P.2-40 or para 40 of p.7\
-    See also Shelley Films v R Features [1994] EMLR 134 that ‘Shelley considered these signs necessary for some good reason connected with filming and the filming of Mrs Shelley’s Frankenstein in particular, which he was not unilaterally at liberty to impart to others’ at 148-9.
-    Unconscionability is the basis for the action but does not breach of confidence make: the action itself: information of a confidential quality, acquired in circumstances that impart confidentiality.
-    So it was the security around the hotel and the probability that Mr Seeburg would have to be surreptitious – ‘he did so because he knew that photography was not permitted and that he was being allowed to remaiin in the restricted area only on the basis that photographs would not be taken of the actual shoot.’ Para 30, p.9
    
IDENTITY

Falconer v ABC [1992] 1 VR 662
    The ABC wanted to broadcast the identity of a former witness – the Police (Falconer) wanted to prevent that from happening. Note that the Police had not sought an injunction against the publishing of the information at the trial in which the informant was used.
At 208 the court applies the American Cyanamid principle to ask whether there is a serious question to be applied and test the balance of convenience: note that this is NOT applicable in Defamation law. Standing: The Police were given standing because they owed a duty of confidence to the witness [another example may be where Doctors can sue on behalf of their patients].
•    The argument of the parties;
o    ABC argued that the information had lost confidentiality by being revealed in the court case.
o    The Police argued that the information itself was not confidential but the current whereabouts of the witness was confidential and the
photo would enable people to identify the witness.
•    The Court said that the photos were part of court exhibit and the litigation had long past, none of the photos were published in the press at the time [1980s]…that is a far cry form the circulation achievable by a nation TV current affairs article in 1991. [Ashley J]
•    Justice Ashley at 212: “where confidentiality attaches to information such that equity would prevent the unauthorised disclosure, equity may also protect that information form disclosure by means of the use of non-confidential material.”
So the courts will be willing to impose that duty of confidence and injunct parties from making use of that information to their detriment:
•    If the information is private and would never be given voluntarily, then the court may impose a duty: ‘The basis for equitable intervention to protect onfidentialty is that it is unconscionable for a person who has received information on the basis that it is confidential subsequently to reveal that information.’ Stephens v Avery, Browne-Wilkinson VC [482 at e]
•    The basis for the balance lies in Stephens v Avery (483 at c); ‘To my mind this case undoubtedly does raise fundamental difficulties as to the relationship between on the one hand the privacy which every individual is entitled to expect, and on the other hand freedom of information.’
    A breach of confidence can be very wide – in both the use and disclosure of that information.

GOVERNMENT INFORMATION

AG v Guardian Newspapers (No.2) [1990] 1 AC 109
-    AG took action to refrain the spy capture publication
-    Many media outlets tried to cover the story and all outlets were prosecuted through contempt and BOC
-    Issue:
o    Indicates a relaxation of the 2nd limb of BOC
o    Person receiving the information knows its confidential
o    Must be relationship between the person disclosing and imparting the information
o    The information itself must be confidential
o    There is an obligation of confidence
o    HOL: there might be certain types of information that is so clearly confidential that the nature of the information does not require a relationship to exist – eg state secrets – any circumstance would allow the express realisation that the information is confidential
o    The information itself fixes a liability to anyone discloses such information
-    even if you accept that there are some types of information that are self confidential in nature there needs to be a different standard of disclosure for governmental secrets
-    The protection of official secrets – equitable principles require there be a sufficient detriment due to the disclosure – there needs to be a higher threshold then normal due to the nature of information
-    The spy capture book had already been published in the US
-    I.e. the information was already available to anyone in the US
-    Courts held that injunction was futile as a result

Minister for Mineral Resources v Newcastle Newspapers Ltd (1997) 40 IPR 403

-    Mrs Christenson received information about ministerial minutes.
-    She then gave them in the media which published it. Justice Young said the law regarding the government and public interest is different because the government must show positive detriment to the public interest – not just embarrassment [406]. In Commonwealth v John Fairfax & Sons Ltd & Ors Justice Mason said: “It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government…Unless disclosure is likely to injure the public interest, it will not be protected”.
-    A court will 'restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged' (Fairfax at page 50). The plaintiff must show that there will be an unauthorised use of such information to the 'detriment' of the plaintiff. In relation to what constitutes 'detriment' to a government in this context, Mason J said in Fairfax (at pages 51-52): 'The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.
-    This means that a real prejudice needs to be shown.
-    Such an example may be where the government is involved in claims for compensation being made against it. Justice Young goes on to say that he does not want to “encourage disloyalty” but to consider the  “often overriding public interests which mean the that the court will not give its aid by injunction to prevent public discussion of public issues.” [408]

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