Rosemary Jay, a privacy lawyer with Pinsent Masons, the law firm
behind OUT-LAW.COM, told podcast OUT-LAW Radio that the law of
confidentiality could be used by a source to force a journalist to
protect their anonymity.
"It could be confidential as long as the information that is
disclosed met the necessary tests of meriting the protection of
confidentiality and the relationship was such that it was one where
information was confided by one person to another," said Jay.
The law of confidentiality is increasingly used to protect
celebrities' privacy in the courts, and is designed to keep
something secret which was told to a person in a clear context of
confidentiality.
In off the record briefings the information to be imparted is
usually meant to be publicised, but the identity of the person
giving the information is not. That identity could qualify as
protected information in that context, Jay said.
"In journalistic terms it would do because it might well be that
that is the crucial bit of information, that the person has
disclosed their identity as the source of that material," she
said.
The law means that someone who thought that they had briefed a
reporter off the record who suspected their identity was going to
be revealed could apply for a court order for an injunction
stopping that publication. Any breach of the injunction would be
treated as contempt of court.
The question of how secure off the record briefings are has been
in the news since US Presidential hopeful Barack Obama's foreign
policy aide Samantha Power was forced to resign.
She had given an interview in The Scotsman newspaper in which
she called Obama's rival Hillary Clinton a monster and immediately
claimed that the comment was off the record.
The Scotsman published and attributed the remarks, saying that
there was no agreement that any of the interview be off the record
beforehand, and that saying after a remark that it was off the
record does not put it off the record.
Richard Keeble, a professor of journalism at Lincoln University,
told OUT-LAW Radio that he agreed with the Scotsman's
interpretation.
"[Sources] should obviously establish at the very beginning that
it is off the record," said Keeble. Referring to Power's
post-statement request that her comments be off the record, Keeble
said that "it's problematic because the journalist isn't obliged to
respect that wish. For a member of the public to expect that to be
automatically respected is wrong."
Jay said that to attract the status of a confidence which might
be eligible for legal protection, both parties would need to agree
that something about the comments were secret. "It's a question of
what was the nature of the relationship with the person you were
talking to – did both parties accept that it was being transferred
in confidence?" she said.
