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- Privacy and the Media
Privacy and the Media
- By Student at Law
- Published 27/06/2007
- Sydney Uni
- Unrated
DISCHARGING INJUNCTIONS
Getting an Injunction:
• To obtain one you must have a ‘serious question to be tried’; Megarry J’s test in Coco v AN Clark that it not be ‘trivial tittle-tattle, however confidential’ [at 48]
1. that the information in dispute retains its confidential quality
2. that the defendant acquired the information in circumstances imposing a duty of confidence
3. that the defendant has, or proposes to disclose or use it in breach of confidence
• Balance of convenience: Whiskisoda, But it would be much easier to use the American Cyanamic principles.
Westpac Banking Corporation v John Fairfax Group (1991) 19 IPR 513
- foreign exchange transaction matters
- letters that were prepared was leaked to Fairfax
- Fairfax threatened to print them
- Westpac got interlocutory injunction to restrain publication of the letters
- Extracts of the letter were read in parliamentary proceedings and SA press disclosed this in the media
- F wanted the injunction to be discharged due to this disclosure. They said that the information was in the public domain and that publishing the information was in the public interest. (A 3rd party may not owe a duty of confidence if the information has entered the public domain and so has lost its confidential quality).
- “The Tribune” – reproduced the letters in their entirety and sold them in Queens Square
- Issue: Whether the information had passed into the public domain to such an extent that interlocutory injunction was futile and should be discharged
- Did the publication in SA and Queens Square amount to this issue?
- The Tribune – only 2 copies were sold – hence was not sufficient enough to amount to public knowledge – the rest of the copies were destroyed
- The court made the point that rarely will an injunction be reused or discharged on the basis of the public domain defence; because if they make a mistake they will effectively destroy the plaintiff’s cause of action.
- The Fair and accurate reports that were reported in the parliament – only gave readers the general nature of the allegations and not the details that were encapsulated in question
- In order to destroy the confidential nature of the information – needs to be a detailed account of the information
- Hence the interlocutory was maintained and held to be not futile
THE PUBLIC INTEREST DEFENCE
- Exsits in English law – freestanding public interest defence ( PID)
- The narrow approach – encapsulated in the ‘iniquity rule’
- Iniquity rule
o Can be used either in Liability or Defence
o In Aus is not so expansive as in England
- No PID in Australia
The Courts have consistently said that the public interest is not always in the public interest
X v Y [1998] 2 All ER 648
This case illustrates the approach of the UK courts to the question of the public interest in disclosure of HIV status. In this case a newspaper company obtained information that two practicing doctors in one particular hospital were HIV positive but were allowed to continue their practice. Upon knowledge of this information leakage, the hospital sought and obtained an injunction restraining the newspaper from using that information. The newspaper went on to publish the information in a number of articles.
The plaintiff brought the matter to court, seeking a further injunction from disclosure of the names of the doctors. The Court held that the public interest in preserving the confidentiality of hospital records identifying actual or potential AIDS sufferers outweighs the public interest in the freedom of the press to publish such information. Justice Rose ruled in this case that; ‘the public interest in preserving the confidentiality of hospital records identifying actual or potential AIDS sufferers outweighed the public interest in the freedom of the press to publish such information, because victims of the disease ought not to be deterred
by fear of discovery from going to hospital for treatment, and
free and informed public debate about AIDS could take place without
publication of the confidential information acquired by the
defendants.’ [653]
Thus, preservation of confidentiality is the only way of securing public health; otherwise doctors will be discredited as a source of education, for future individual patients 'will not come forward if doctors are going to squeal on them'. Consequently, confidentiality is vital to secure public as well as private health.
The court basically said that there is a primary duty to the patient to keep medical information confidential, which may only be overridden by a doctor when it is in the public interest. Rarely, is it legally advisable to breach confidentiality to serve the wider public interest of protecting others. Only when there was a clear infection risk could a doctor be legally liable for failure to disclose: see W v Egdell [1990] 1 All ER 835:
The psychiatrist in this case believed that it was imperative that the patient be kept in secure conditions [serial killer]. The psychiatrist released his report to the authorities with the intention that, in any later application by the patient for discharge, the tribunal would see it. An action was brought against him for breach of confidentiality. The claim was dismissed and the Court of Appeal dismissed the appeal. It was held that Dr Egdell was clearly justified in his actions.
‘A consultant psychiatrist who becomes aware, even in the course of a confidential relationship, of information which leads him, in the exercise of what the court considers a sound professional judgment, to fear that such decisions may be made on the basis of inadequate information and with a real risk of consequent danger to the public is entitled to take such steps as are reasonable in all the circumstances to communicate the grounds of his concern to the responsible authorities.’ Bingham LJ
Where a doctor, in the exercise of her or his professional judgment, fairly and reasonably believes that a person's life is immediately endangered and that urgent action is required, she or he must act unhesitatingly to prevent injury or loss of life even if there is to be a breach of confidentiality.
Australian Cases such as Finch v Sparrow (1986) 11 FCR 102 have restated professional breach in the public interest:
‘Solicitors, like doctors, have a duty of confidence to their clients. However, when they believe that the life or safety of others is threatened, they are entitled in the public interest to disclose information confided to them by their clients in any way that they consider to appropriate.’ Brolga J
Sullivan v Sclanders (2000) 77 SASR 419
The public interest defence arose from Gartside v Outram: “that there is no confidence as to the disclosure of iniquity. You cannot make me the confidant of a crime or a fraud, and be entitled to close up my lips upon any secret”.
This is also known as a “clean hands” principle reflected in Stephens v Avery where the court examined the criminality of the grossly immoral conduct of the plaintiffs v that of the defendants [482 J]: ‘The sexual conduct of the plaintiff was not so morally shocking in this case as to prevent the third defendant…from spreading the story all over its front and inside pages.’
There is essentially no duty to keep such affairs confidential – ‘
Australian Approach: Kirby referred to a wider interest in saying that merely because there is an element of unclean hands does not automatically give rise to a defence;
• “It is simply an instance of the wider category of the public interest in disclosure which may sometimes, even if rarely, outweigh the public interest in confidentiality.” A v Hayden (No 2) at 545
• Gibbs in the same case said ‘I prefer to deal with this publication by reference to a general principle of ‘public interest’ rather than by reliance upon a narrower defence, developed for specialised cases, to justify the publication of particular iniquities.’ [ibid.] So for now, unclean hands as a defence is a rare event.
• But note that Australian law is still ambivalent as to whether it will adopt Justice Gummow’s narrow view, or whether it will adopt a broader balancing approach of the public interest and the confidentiality as sought out in Campbell.
• As for Goveernement Information, because the government's ability to restrain disclosure of information depends on a balancing of the public interest, a court may not restrain disclosure of 'things done in breach of national security, in breach of the law (including fraud) and ... matters which involve danger to the public' (Commonwealth v John Fairfax & Sons Ltd at page 57).
Getting an Injunction:
• To obtain one you must have a ‘serious question to be tried’; Megarry J’s test in Coco v AN Clark that it not be ‘trivial tittle-tattle, however confidential’ [at 48]
1. that the information in dispute retains its confidential quality
2. that the defendant acquired the information in circumstances imposing a duty of confidence
3. that the defendant has, or proposes to disclose or use it in breach of confidence
• Balance of convenience: Whiskisoda, But it would be much easier to use the American Cyanamic principles.
Westpac Banking Corporation v John Fairfax Group (1991) 19 IPR 513
- foreign exchange transaction matters
- letters that were prepared was leaked to Fairfax
- Fairfax threatened to print them
- Westpac got interlocutory injunction to restrain publication of the letters
- Extracts of the letter were read in parliamentary proceedings and SA press disclosed this in the media
- F wanted the injunction to be discharged due to this disclosure. They said that the information was in the public domain and that publishing the information was in the public interest. (A 3rd party may not owe a duty of confidence if the information has entered the public domain and so has lost its confidential quality).
- “The Tribune” – reproduced the letters in their entirety and sold them in Queens Square
- Issue: Whether the information had passed into the public domain to such an extent that interlocutory injunction was futile and should be discharged
- Did the publication in SA and Queens Square amount to this issue?
- The Tribune – only 2 copies were sold – hence was not sufficient enough to amount to public knowledge – the rest of the copies were destroyed
- The court made the point that rarely will an injunction be reused or discharged on the basis of the public domain defence; because if they make a mistake they will effectively destroy the plaintiff’s cause of action.
- The Fair and accurate reports that were reported in the parliament – only gave readers the general nature of the allegations and not the details that were encapsulated in question
- In order to destroy the confidential nature of the information – needs to be a detailed account of the information
- Hence the interlocutory was maintained and held to be not futile
THE PUBLIC INTEREST DEFENCE
- Exsits in English law – freestanding public interest defence ( PID)
- The narrow approach – encapsulated in the ‘iniquity rule’
- Iniquity rule
o Can be used either in Liability or Defence
o In Aus is not so expansive as in England
- No PID in Australia
The Courts have consistently said that the public interest is not always in the public interest
X v Y [1998] 2 All ER 648
This case illustrates the approach of the UK courts to the question of the public interest in disclosure of HIV status. In this case a newspaper company obtained information that two practicing doctors in one particular hospital were HIV positive but were allowed to continue their practice. Upon knowledge of this information leakage, the hospital sought and obtained an injunction restraining the newspaper from using that information. The newspaper went on to publish the information in a number of articles.
The plaintiff brought the matter to court, seeking a further injunction from disclosure of the names of the doctors. The Court held that the public interest in preserving the confidentiality of hospital records identifying actual or potential AIDS sufferers outweighs the public interest in the freedom of the press to publish such information. Justice Rose ruled in this case that; ‘the public interest in preserving the confidentiality of hospital records identifying actual or potential AIDS sufferers outweighed the public interest in the freedom of the press to publish such information, because victims of the disease ought not to be deterred
Thus, preservation of confidentiality is the only way of securing public health; otherwise doctors will be discredited as a source of education, for future individual patients 'will not come forward if doctors are going to squeal on them'. Consequently, confidentiality is vital to secure public as well as private health.
The court basically said that there is a primary duty to the patient to keep medical information confidential, which may only be overridden by a doctor when it is in the public interest. Rarely, is it legally advisable to breach confidentiality to serve the wider public interest of protecting others. Only when there was a clear infection risk could a doctor be legally liable for failure to disclose: see W v Egdell [1990] 1 All ER 835:
The psychiatrist in this case believed that it was imperative that the patient be kept in secure conditions [serial killer]. The psychiatrist released his report to the authorities with the intention that, in any later application by the patient for discharge, the tribunal would see it. An action was brought against him for breach of confidentiality. The claim was dismissed and the Court of Appeal dismissed the appeal. It was held that Dr Egdell was clearly justified in his actions.
‘A consultant psychiatrist who becomes aware, even in the course of a confidential relationship, of information which leads him, in the exercise of what the court considers a sound professional judgment, to fear that such decisions may be made on the basis of inadequate information and with a real risk of consequent danger to the public is entitled to take such steps as are reasonable in all the circumstances to communicate the grounds of his concern to the responsible authorities.’ Bingham LJ
Where a doctor, in the exercise of her or his professional judgment, fairly and reasonably believes that a person's life is immediately endangered and that urgent action is required, she or he must act unhesitatingly to prevent injury or loss of life even if there is to be a breach of confidentiality.
Australian Cases such as Finch v Sparrow (1986) 11 FCR 102 have restated professional breach in the public interest:
‘Solicitors, like doctors, have a duty of confidence to their clients. However, when they believe that the life or safety of others is threatened, they are entitled in the public interest to disclose information confided to them by their clients in any way that they consider to appropriate.’ Brolga J
Sullivan v Sclanders (2000) 77 SASR 419
The public interest defence arose from Gartside v Outram: “that there is no confidence as to the disclosure of iniquity. You cannot make me the confidant of a crime or a fraud, and be entitled to close up my lips upon any secret”.
This is also known as a “clean hands” principle reflected in Stephens v Avery where the court examined the criminality of the grossly immoral conduct of the plaintiffs v that of the defendants [482 J]: ‘The sexual conduct of the plaintiff was not so morally shocking in this case as to prevent the third defendant…from spreading the story all over its front and inside pages.’
There is essentially no duty to keep such affairs confidential – ‘
Australian Approach: Kirby referred to a wider interest in saying that merely because there is an element of unclean hands does not automatically give rise to a defence;
• “It is simply an instance of the wider category of the public interest in disclosure which may sometimes, even if rarely, outweigh the public interest in confidentiality.” A v Hayden (No 2) at 545
• Gibbs in the same case said ‘I prefer to deal with this publication by reference to a general principle of ‘public interest’ rather than by reliance upon a narrower defence, developed for specialised cases, to justify the publication of particular iniquities.’ [ibid.] So for now, unclean hands as a defence is a rare event.
• But note that Australian law is still ambivalent as to whether it will adopt Justice Gummow’s narrow view, or whether it will adopt a broader balancing approach of the public interest and the confidentiality as sought out in Campbell.
• As for Goveernement Information, because the government's ability to restrain disclosure of information depends on a balancing of the public interest, a court may not restrain disclosure of 'things done in breach of national security, in breach of the law (including fraud) and ... matters which involve danger to the public' (Commonwealth v John Fairfax & Sons Ltd at page 57).
