Are we a fraction of a transparent society?

I came across a very interesting editorial in the Huffington Post by Don Tapscott, advisor to government and business leaders, who wrote an article on “Why Transparency and Privacy Should Go Hand in Hand”. Tapscott says that ultimately in order to protect privacy, all of us will need to change our own online behaviour. I was very caught by his arguments and how he used Facebook as an example to show that we are making our society more transparent then essential. I therefore want to give my personal view and reflection on whether I think we need to change our online behaviour in order to find a balance between privacy and transparency.

It is true that there is a grown generation with excessive digital interactions. Many of us have Facebook were we share information on not only ourselves but also on people around us. We share pictures, information, statues, location and even what we “like”. We are revealing so much on ourselves for others to observe and see. Transparency is no longer just an opportunity for companies and other institutions to generate trust and be more effective. It has now also become an opening for individuals to do the same. It is thought that the more transparent we are, the more moral our behaviour will be – we have nothing to hide.

Tapcsott says that “advocating individual privacy and institutional transparency simultaneously is not illogical; it is common sense.” – I cannot other than agree. Transparency is the chance and even the requirement of organizations to communicate important information to their stakeholders. Individuals have no such compulsion. Personal information makes up our modern identity.

Does this mean we live in a transparent world? Well, there is definitely a balance between privacy and transparency, however, as with other things, life is what you make of it . The information people reveal must be managed sensibly. In fact, to have a secure life and self-determination, individuals have an obligation to themselves to protect their personal information. And institutions should be transparent about what they do with our personal information. Transparency and privacy therefore do go hand in hand and are in fact well balanced.

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  We cannot control the wind, but we can direct the sail.” ― Jimmy Dean

Presentation on the Leveson Inquiry

The Leveson Inquiry is a judicial public Inquiry set up my Prime Minister David Cameron to study culture, practices and ethics of the British press. It was established after the News of the Worlds phone hacking scandal with Rebekah Brooks and Andy Coulson. See presentation for detailed information regarding the Leveson Inquiry;

CLICK HERE FOR THE PRESENTATION

 See this blog post for more information on the phone hacking trial between Brooks and Coulson

Let’s Moot

In today’s class we had a moot on law of confidence. My group was representing the respondent, Channel Xstra.

A moot is an argument or discussion of a hypothetical legal case.  Click HERE to learn more about mooting.

The moot problem:

     Simms v Channel Xstra    

The plaintiff, Terry Simms, is an actor of some limited fame. After being ‘killed off’ in a recent episode of West Enders, a popular serial on BBC television, Mr Simms had an idea for a television serial. The storyline revolved around a group of young clothes designers, struggling to hit the big time in the tough world of fashion. Mr Simms spoke to Janet Nye, a well known scriptwriter, hoping to interest her in the idea of turning his storyline into scripts. Nye took the idea to Frank Blyton, a producer of many well known television serials. On return, she told Simms that Blyton rejected the idea, saying that it would not have the mass appeal that is needed for a successful serial. Accepting that Nye’s expertise and Blyton’s verdict was correct,  Simms thought no more about the script. Some time later, Channel Xstra, a digital channel, started to broadcast a daily ‘soap’ serial, called ‘A lines’ , starring several well known actors of repute. The storyline was almost identical to that discussed by Simms and Nye. The producer was Blyton. Simms sued Channel Xstra, Nye and Blyton for breach of confidence, alleging that Blyton knew that the idea was his (Simms’s) when he was approached by Nye. The court found that Channel Xstra were approached with the idea without knowledge that it was Simm’s and that no breach of confidence had occurred by Channel Xstra. Stepney J also held that it was in the public interest that mere ideas for serials (which had not been written down or developed yet to the full) should be in the public domain and not protected by the laws of confidence.

Simms is appealing on two grounds:

  1. Channel Xstra were bound by the laws of confidence, even though they were a third party to the knowledge, and did not know that it had been imparted to Blyton in confidence.
  2. There was no public interest defence available to Channel Xstra in this situation.

Skeleton argument by my group on behalf of the respondent – Channel Xstra:

1st submission (to be addressed by Senior Counsel)

a) The respondent was not bound by the law of confidence because it was an innocent third party, and came by the confidential information without actual or constructive notice of fact that the information was to be treated confidentially – Fraser v Thames Television Ltd [1984] QB 44

2nd submission (to be addressed by Senior Counsel)

a) Damages/Account for Profit – it is submitted a grant for damages or an account for profit is inappropriate in the present case because there is no direct breach of confidence between the respondent and the Appellant.

b) Injunction – Because the confidential information has already been used and made into a television show, o orde the grant of an injunction to restrain further publication would be ineffective, as the information is now freel available in the public domain – Attorney-general v The Observer Ltd and others [1990] 1 AC 109 at 217C affirmed by HL

Prince Albert v Strange (1849) 2 De Gex & Smale 652

Schering Chemicals v Falkman [1982] QB 1

3rd submission  (Addressed by Junior Counsel)

Senior Counsel - Samuel Wilkinson

Senior Counsel – Samuel Wilkinson

Now, sit back, relax and bring some popcorn and watch the moot here:

“A good lawyer knows the law; a great lawyer knows the judge.”

Don’t tell!

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A duty of confidence rises when confidential information comes to the attention of a person or public authority in circumstances where it would be unfair were that information to be disclosed to others.

To determine if the information was acquired in confidence, and whether its revelation constitutes a breach of confidence we will apply the case of Coco v A N Clarke Ltd [1969]. For the purposes of Freedom and Information Act 2000 S.41 a breach will always be illegal if:

  • the information has the necessary quality of confidence;
  • the information was imparted in circumstances importing an obligation of confidence; and
  • there was an unauthorised use of the information to the disadvantage of the confider

A breach will not be actionable when there is a defence in the public interest. There are instances, however, where they will rule that the information should be disclosed to the public as a whole, or a section of the public as it is in their interest.

However, an actionable breach is not just one that is arguable but one that would, on the balance of probabilities, succeed.

Lord Bingham held in AG v Guardian Newspapers (No. 2) that a duty of confidence arises from an obligation of conscience. Lord Goff further established that it would be illegal for a doctor to disclose a patient’s information to anyone but the patient. It was also held in General Medical Council that “Confidentiality” is central for patients in order to feel confident to provide information or seek essential medical care.

Patient’s interests in confidentiality is also protected under The Human Rights Act 1998, Article 8; Right to respect for private and family life. However Article 8 is not an absolute right and is qualified by Article 8(2).

Z v Finland (1997) is a good example of a case that applied Art 8 of the Human Rights Act 1998. The court held that there was no violation of the Article as there was good reasons for obtaining information, as the binding purposes being followed and no inconsistent measures were taken.

Baroness Hale held in Campbell v MGN Ltd [2004];  “Blundering in when matters are acknowledged to be at ‘fragile’ stage may do great harm.” An obligation of existence of confidentiality due to the nature of treatment for Ms Campbell’s drug addiction was established.

A recent well known case where unauthorized access to patient medical data and breach of confidence took place, is the case regarding the duty nurse who after a hoax call revealed information about the pregnancy of the Duchess of Cambridge, to two ‘prank-callers’ without identifying them.

The case emphasizes the importance of protecting patient information from dishonest individuals and media sources. Immediate communications and internet, joined with extensive EHR implementation, make confidentiality breaches more common.

The Nurse, Mrs. Saldanha, committed suicide a few days after the incident. She had not shown any previous signs of mental illness or depression. One of the involved parties of the ‘prank-call’ gave her apology to Mrs. Saldanha’s family and added “There is a lot to learn from this tragic event, I believe that hospitals and media organizations should look into their procedures and policies to ensure a tragedy like this never happens again”

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The biggest guru-mantra is; “never share your secrets with anybody. It will destroy you” ― Chanakya

Years To Build, Only Seconds To Lose!

A reputation once broken may possibly be repaired, but the world will always keep their eyes on the spot where the crack was” – Joseph Hall

Defamation is the communication of a false statement that harms the reputation of an individual, business, product, group of people, government, religion or nation. It was defined in Sim v Stretch (1936) as ‘a publication of an untrue statement about a person that tends to lower his reputation in the opinion of  right thinking members of the community’. The law in this area protects individual’s reputation and feelings from unjustified violations. Defamation law is recognized as a legit set of law for restricting freedom of expression. The extensive reach of the press, and now the internet, has resulted in the creation of separate laws and differing severity between spoken defamation (slander) and written defamation (libel), the latter of which usually includes radio and television too.

It is particularly important for all social media users to know how to safeguard themselves from defamation. Thus why I am sharing some of my knowledge with you readers so you are aware of how to protect yourself.

“46% of 18-to 24-years-old are unaware they can be sued for defamation if they tweet an unsubstantiated rumour about someone” – according to research for law firm Wiggin.

A tweet or a Facebook status online is regarded as libellous if it damages someone’s reputation “in the estimation of right thinking members of society”. It can do this by exposing them to “hatred, ridicule or contempt”. It is a civil offence so you won’t be jailed but you could end up with a large damages bill. The rules also apply to re-tweets.

 Gordon & Holmes v. Love is a good example of a recent case regarding libel on social media. A tweed posted by Courtney Love in 2010 suggesting that one of her attorneys had been “bought off” wasn’t defamatory, a jury decided in January 2014. Courtney Love argued that the statement should be considered an opinion. Courtney Love claims that the message was never meant to be public. It was meant to be sent as a direct message, which only the recipient would see, but it instead went public and was quickly deleted. Gordon & Holmes, accused Love of disseminating “false and outrageous statements” designed to injure their reputation “with the end of damaging plaintiff’s business.” Jurors decided that Love’s tweet included false information, but the musician didn’t know it wasn’t true. Holmes’ lawyer Mitchell Langberg said that while his client was disappointed with the verdict, her reputation was upheld and the world now knows that Love’s statements were false. “At the end of the day, her biggest asset in life is her reputation,” Langberg said. “That she got back today”

The best defence is if you can prove the contents of the post is true, or as Courtney Love (above) claim the defence of honest opinion on established facts – a “fair comment”. Another possible defence is to claim you were covered by privilege, if it was something said in Parliament or in court, or that it was an example of “innocent dissemination” – you did not know you had published the comment (it might have been an automatic system).

The only way to be completely safe is to avoid posting gossip unless you know for a fact that it is true.

Let’s say that I would post on my blog that “Will Smith robbed a bank yesterday”. If this statement is not true (remember, truth is one of the absolute defences to defamation), it is defamatory. There is no way that this statement, if false, is not defamatory.

But let’s qualify this statement. Let’s say that I wrote, “I think Will Smith robbed a bank yesterday.” This is no longer a statement of fact but of opinion (as Courtney Love argued), thus protected from libel suits. But, is this really a statement of opinion? Sometimes statements of opinion really are viewed as statements of fact, depending on the circumstances. In this case, the average person may very well look at my statement as a statement of fact, depending on how well you know Will Smith, and why you believe that he robbed a bank.

Remember, just because you phrase something as an opinion – “I think” or “I believe” – does not automatically protect you from a defamation claim.

Let’s take another example. Let’s say that you wrote a post on Facebook regarding John C who hit a boy at his school and was due to this expelled. Again, if the statement if false, this is almost certainly defamatory. But what if what you have written is to a certain extent true but merely blown up (like it very often is). Maybe John C actually did hit a boy at his school and was as stated expelled, however, not due to the hitting but because of another reason. You have certainly written something that was false, but maybe overall it was not defamatory

The bottom line on this type of situations is that if you are blogging or writing on your Facebook page, or submitting comments on someone else’s blog or Facebook page, make sure that you have all of your facts absolutely straight before posting your statement to the internet. Once you have clicked “send,” you can’t take it back.

 

SM

Welcome!

Hello and welcome everyone! – To the ones that just clicked in to the wrong page and to you that came to the right page, to you who just searched for “sex” like 8 billion other people on this planet (I’m sorry to have mislead you, but hey don’t leave!) and to the ones that actually know me and want to see more of this exciting blog, either way hello and welcome to all of you!

So to you who came to the wrong page, you might wonder who I am? Well, my name is Desiree Yousefi and I’m a third year law student at a university in London. I am creating this blog as part of my Law and the Media course. I’m very excited to start my first blog and to learn more about this subject and also to share this journey with you readers.

 I hope you will enjoy it!

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“No one can make you feel inferior without your consent.”
― Eleanor Roosevelt