Mootings'a Hooting

In this week's media law class, a moot took place concerning the law of breach of confidence (as mentioned in my previous post). What is a moot, you ask? Good question.

Mooting is the exercise of arguing imaginary cases/scenarios (almost like a legal debate) in the form of a mock trial. Just like in a real appeals trial, there it would consist of two sides; the plaintiff and the respondent. Both sides will have a senior and junior counsel, who address particular grounds of arguments.

Image courtesy of http://en.wikipedia.org/wiki/Moot_court

The facts of this scenario were as follows:

The plaintiff (my client), 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.

As senior counsel for the plaintiff, I was able to argue the first ground of our appeal - that Channel Xstra were bound by the laws of confidence regardless of the fact that they were a third party to the knowledge and did not know it had been imparted to Blyton in confidence.

The second ground, which my junior counsel (also known as my 'learned friend') argued was that there would be no public interest defence available to Channel Xstra in this situation.

Considering Channel Xstra were a third party to the information, it proved quite difficult in attempting to argue that they knew about this obligation of confidence prior to creating the show 'A Lines'. Instead, I argued that Channel Xstra ought to have known that in this type of scenario, confidence should have been attained, therefore a reasonable man would have been able to come to the same conclusion.

A further problem presented itself when it was established that none of my client's ideas had been written down, creating a lack of evidence to support our argument. There was nothing, therefore, to show that my client had even created these ideas in the first place. However, it was soon established that ideas do not always need to be written down and can be contained verbally.

Please excuse my bloopers!

The Dream Team

PRIVATE & CONFIDENTIAL... or not.

This area of law is concerned with secrets and an obligation of confidence; they may be commercial, industrial or concern everyday contracts and business negotiations. We often come into contact with people everyday in life whom owe you or owe others a duty of confidence, for example, in employer and employee relationships, doctors and patients, and solicitors with their clients.

Although the law on the breach of confidence is primarily based around case law, s.171 of Copyright, Designs and Patents Act 1988 does recognise this area of law - "Nothing in this part affects... the operation of any rule of equity relating to breaches of trust or confidence".

It is important to note the distinction between areas of law which people often get confused about. The law of confidence concerns the protection of ideas; this can be distinguished from copyright laws, as they protect the expression of the idea. Breach of confidence may also protect a limited right to privacy, however, in respect of photographs and films, if they had been given to another to whom a duty of confidence was attached.

This area of law developed in the middle of the 19th century and then lay dormant until the late 1940's when people realised that this was a useful area. In Morison v Moat (1851) there was a dispute between the son of the inventor of a form of medicine ("Morison's Vegetable Universal Medicine") and the partner's son who had been improperly told the recipe by the original partner. It was held that there was a breach of faith and confidence by the original business partner who had told his son. It was clear, here, that the breach was actionable per se, despite that there was no contractual relationship.

The Modern Law of Breach of Confidence

Three requisite elements for the doctrine of confidence (Megarry J in Coco v AN Clark [1969]):

1. Information must have the necessary quality of confidence - it must not be public property and public knowledge (Lord Greene MR in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd [1963]);

Information must have been imparted in circumstances importing an obligation of confidence;

There must be an unauthorised use of the information to detriment of the party communicating it.

The basic requirement for a confidence is the existence of a duty which may be expressed from the circumstances. The obligation must be expressed within a contract, or imposed/implied outside of a contract.

The Law Commission proposed that this area of law should be codified and in 1981 a draft Bill was produced. The advantage with the law of breach of confidence is that it has a flexible nature and is freed from the straight-jacket of statutory interpretation. No moves have been made since in order to codify the law.

1. Nature of Confidential Quality

The owner of the information must believe that the information would be injurious to him or of advantage to his rivals. He must also believe that the information is confidential or a secret and these two elements need to be reasonable.  Also, the information must be considered and taken into account of the trade practice - would it be common place for that information to be of a secretive nature?

The important point here is that the owner of the information has not put it within the public domain. Although disclosure of this information removes the obligation of confidence, a person under an obligation may still be held to it for a period of time - the 'springboard doctrine'. A person who has obtained information in confidence is not allowed to use it as a springboard for activities that would be detrimental to the person who made the communication to them.

What is confidential?

An objective test should be applied when assessing whether information is confidential or not. It is not enough to simply write "PRIVATE AND CONFIDENTIAL" on it, especially if the contents are commonplace and public. On the other hand, failing to mark a document a 'confidential' does not, per se, deprive it of any confidential matter. It seems that a balance needs to be struck here.

2. Obligation of Confidence

Information can be imparted in circumstances where it is clear that an obligation or a duty would arise, for example, within contractual relationships. However, an obligation can also arise in non-contractual relationships as well. This obligation will extend to third parties, provided that it is obvious that the information is of a confidential nature.

3. Unauthorised Use of the Information

Often information will need to be disclosed to a third party, who is not part of the agreement. The authority to disclose will be implied into the agreement, even if not expressly contained. There is doubt, however, as to whether the disclosure needs to be detrimental to the plaintiff for the claim of breach of confidence to succeed. In most cases, detriment can be assumed or implied, even if not obviously proven. Where information is commercial, disclosure to the competition is bound to have a detrimental effect on the plaintiff's trade.

Defences

Public Interest Defence - the only real defence is that disclosure of the information was within the public interest. This succeeded in the case of Lion Laboratories Ltd v Evans & Ors [1984] where the plaintiff's company made and supplied the police with intoximeters to test the breath of drivers. The defendants were technicians developing the device and were aware of the product's unreliability. Concerned that the police were making use of inaccurate and unreliable appliances, the defendants passed on the information to a newspaper. The defendants argued that it was in the public interest to disclose the possible unreliability of a device used as evidence against an individual charged with a criminal offence. The Court of Appeal said it had to weigh up the public's interest in maintaining secrecy in the plaintiff's documents against the public's interest in accuracy and reliability of an approved device used to determine someone's criminal conviction.

Where the information is about the personal details of a public figure, the court will now consider the interplay between Article 8 (right to respect private and family life) and Article 10 (right to freedom of expression) of the European Convention of Human Rights 1950.

Remedies

Damages for breach of confidence will generally be calculated on the basis of compensating for the conversion of property. Where there is a contract, it has been suggested that damages should be assessed on the basis of contractual principles in the Law of Contract. With regard to non-contractual relationships, Lord Denning suggested that the value of the information should be considered. If there is nothing special about the information, then damages should be on the basis of the cost of hiring the consultant. If it is special, then the damages may reflect the price a willing buyer would pay for the information on an open market.

The court may consider an injunction as a solution, however if the information is already within the public domain, then the court will not seek an injunction because it would be impractical and illogical to anonymise something that is already known to the public. The 'springboard doctrine' has been an exception to this, however.

"In almost every profession - whether it's law or journalism, finance or medicine or academia or running a small business - people rely on confidential communications to do their jobs. We count on the space of trust that confidentiality provides. When someone breaches that trust, we are all worse off for it." - Hillary Clinton

To defame, or not to defame? That is the question.

Some would say that we are increasingly seeing people express themselves on social media websites, such as, Facebook and Twitter. Though how many of those 'opinions' could be classed as harmless and innocent rants under the new laws of defamation? 

The rise in defamation cases linked to the internet has been inevitable with the rise in technology. People are prone to relying on this idea of ‘freedom of speech’ no matter what the speech says and what circumstances surround it. The media itself has been seen and known to thrive on this very type of ‘gossip’ about celebrities, in order to expose the lives of many people if given the opportunity to. How is this rise happening, you ask? Well, with the increase of social media around the world, blogs, tweets and posts have failed to put in place the same kind of pre-publication controls that traditional types of media (for example, newspaper articles) use from time to time. As a result of this, there exists an ongoing battle between individuals trying to protect their privacy and the media trying to post allegedly private material.

So who is the winner in this type of war; the potentially sensationalised media who stand by freedom of speech, or the celebrities who struggle to maintain their privacy despite the public nature of their very lives?

Before discussing this debate too deeply, it would make sense to state what exactly the law condemns when an issue of defamation arises. The first necessary element, is that of publication. The claimant must show that there has been a statement published to someone other than himself. Secondly, the statement must refer to the claimant and this is where the court will decide whether the content defamatory or not. In order for the claim to succeed, the last element must be proven; the publication was made without lawful justification.

Making a Publication:

There are two types of defamation; libel and slander. The former must be of a written nature (which includes broadcasts under the Broadcasting Act 1990) and is 'actionable per se'. This means that the claimant does not need to prove that they have suffered any loss or damage as a result of the publication. Whereas, the latter must be published orally and the claimant must prove actual damage. Section 1 of the new Defamation Act 2013 has provided authority for this in that a statement is not defamatory unless it has caused 'serious harm to the reputation of the claimant'. However, there are exceptions to this rule. For example, if the spoken words accuse the claimant of committing a crime or suggest that they are unfit for their profession, then the damage can be presumed.

As the purpose of defamation is to protect reputation, the publication must be made to a third party. For example, if I were to publish a defamatory statement on this blog about a claimant, the third party would be you - the readers, or the 'right-thinking members of society' (Sim v Stetch). As mentioned above, the statement would also need to make reference to the claimant - even referring to the claimant's public nickname could get you into trouble!

The DA 2013 has provided far greater protection for publishers, using measures which underpin freedom of speech. The single publication rule has now been introduced under s.8 to prevent additional action being brought in relation to publication of the same material by the same publisher after one year (the limitation period). This means that when a statement is passed on, it no longer will be a fresh publication. The modern laws of defamation simultaneously and rather cleverly also safeguard the right to reputation  as the court has the discretion to extend the limitation period whenever it is just and reasonable to do so.

Defamatory Nature:

As mentioned above, there is now the requirement of 'serious harm' by which the claimant must prove a reputational and/or financial loss due to the defamatory statement. It is interesting to see how these types of restrictions will affect claimants seeking retribution, as he/she would not be able to simply bring action against any negative statement made about them. Will this assist in changing society's perception of what is acceptable to speak and publish freely?

What standard of freedom is currently at? How far can a person go to feel justified in expressing what they believe as their opinions in the public eye? In recent news, Brenda Leyland clearly felt very strongly opinionated about the McCanns and the loss of their daughter, Madeleine. Others have had the same view regarding their suspicions of the McCann family and possible criminal offences, however the media appeared to hugely condemn Leyland for it.

Image courtesy of Emily Gosden - The Telegraph

Image courtesy of Emily Gosden - The Telegraph

Defences:

The DA 2013 appears to have added new defences in addition to those which existed in the old legislation. Amongst the defence of 'truth' (s.2), operators of websites (s.5) and qualified/absolute privilege (s.6-7) are the defences of public interest (s.4) and the defence of honest opinion (s.3). From a personal perspective, the defence of public interest (which was established in Reynolds v Times Newspaper) sparks my curiosity the most. The defence applies where the defendant can prove that the statement complained of was a statement on a matter of public interest and that he reasonably believed so. However, the key question is how one would measure what should be within the public interest and what would not. Surely that is down to interpretation of public affairs. The importance here, lies within reaching a consensus of what is vital to the public in a general sense.

"If liberty means anything at all, it means the right to tell people what they do not want to hear" - George Orwell, Animal Farm