Study in Confidentiality
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Whether cartoons and written reports can be considered confidential information and will be liable for breach of confidence when such information has been communicated during a social gathering where a real effort has been made to inform those present that it was to be a confidential affair?
Mr. Booth must establish that a breach of confidence has occurred by assessing whether his situation meets the criteria of a three-pronged test described in Coco v Clark by Megarry J. The first requirement is ascertaining the information has “the necessary quality of confidence”. The second is that the information was imparted in circumstances which imported an obligation of confidence. Lastly there must be an unauthorised use of the information which is detrimental for the person who communicated it.
Lord Greene finds in the Saltman case that for information to have the “necessary quality of confidence” it must not be in the public domain as common knowledge already . Sir Nicholas Wilkinson-Browne of Stephens v Avery citing the Spycatcher case agreed that confidential information must have the “basic attributes of inaccessibility” , and also decided that even if a secret was revealed to a limited number of people it did not invalidate its secret nature. Keene J in Douglas v Hello! decides photographs to be confidential because they are visually accurate and cites Shelley Film v Rex Features Ltd which finds that photographs differ in “kind and degree” to a story or sketch. Wilkinson-Browne J. recalling Coco v Clark shows that the law does not protect “trivial tittle-tattle” .
There are two parts involving the confidentiality of the information which was published about Mr. Booths party: The first is the cartoon which parodied the party, which the law does not directly protect as it is not a visually accurate media, but it can be argued that the drawing of a scene can portray an image with an accurate atmosphere by picking up the feel in attendance, which would then be tantamount to a photograph. Or, because caricatures portray a skewed reality and can be subtly influential through humour and charm, they may need more monitoring than photographic accuracy. A report paired with a cartoon may result in an accurate whole, which could further require protection.
The second part of the information is the accompanying story contained in the article about Mr. Booths high school prank related at the party. “Hoisting” teachers hosiery up a flagpole is hardly discreet, and even if Mr Booths identity was not known to the school administration, the prank would not have been a secret to best friend Rob, maybe other friends, and could have possibly become legendary within the school. Although it was new to the readership of the tabloid, the information would already have been somewhat in the public domain. Finally, while the article describes the tale as “criminal”, the fact remains that the caper was only a minor one likely done in a boyhood spirit, and recounted at the party in good humour. More information is necessary to prove otherwise. In this case of triviality the law would dismiss a statement of claim. Though the cartoon could possibly be proved to be confidential, the written information would probably not be confidential, due to its semi-public nature and triviality.
Brooke J. in Douglas v Hello!