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English Law: Breach of Confidence

Introduction

Every person is entitled to the right of privacy according to the English law. The law recognizes that there certain aspects of an individual that do not need to be exposed to the public and hence the need to be protected. The right to such privacy may be violated in various forms which may require an individual to take the necessary measures and be protected by the court (Torremans, 478). It however happens that somebody confides in a close friend concerning some of their top secrets. They may do this for the purpose of seeking their help and advice and also to make them be understood by their friends. Such secrets are revealed basing on the loyalty that friends have towards each other. This may not be like a trade secret where by the individual being revealed to be made to sign confidentiality documents. It is done through mutual understanding of which the participating parties may not think of the consequences that may befall them. In the course of their friendship, things may not go on so well and part of the secrets they shared may be leaked to the public. To ensure loyalty towards secrets shared, the English law seeks to protect individuals from such occurrences. They are usually free to seek legal address for measures to be taken against their disloyal friends. Articles 8 and 10 of the English law contain the circumstances that may lead to such occurrences and the measures that can be taken there after.

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Case study

The case in question involves Ms McKennitt a Canadian musician that travels around the world to perform live concerts and two companies that assist her in the production of her music (Zimmermann, 75). In the process of walking around the world, McKennitt encounters Niema Ash, the defendant of the case where they share a lot. Ash is a writer by profession and they become great friends with McKennitt. Ash publishes a book immediately after they parted ways with McKennitt in London which is the centre of all the arguments. Ash works in hand with other publishing companies as well as the music producers that McKennitt was using in his production. There is of course some confidential information that McKennitt revealed to her producers for professional reasons which were to be granted protection by the court (Bradshaw & Burgh, 68). There is however certain personal details that McKennitt shared with Ash on a friendly basis. The book which is titled ‘Travels with Loreena McKennitt: My life as a Friend’ was written by the defendant Ash is believed to contain some personal information about McKennitt which was not supposed to be revealed in public.

The book was meant to promote McKennitt’s album which was to circulate around the world. In reading the book, McKennitt reveals that there are certain things about her private life that were written in the book which was contrary to the confidentiality law (Hunt, 181). Ash had breached the law of loyalty by revealing that which she was not supposed to reveal to the public. Considering that they shared the information on a friendly basis, it may not be easy for one to know the information that is private and that which is not private to the individual unless clearly stated in the speech. Ash was told a lot of things by her then friend which she may have thought that they are not very personal to her. The case was appealed before judge Buxton who was to follow up on the available evidences to come up with a solution. There are circumstances and situations that led to the occurrence of the case which have to be critically observed in order to come up with a fair and just ruling (Story, & Bigelow, 67). The purpose of the court is to look at both sides of the case with the aim of ensuring fairness in ensuring that both sides are satisfied. The main available evidence to the case was the book which was said to contain such secrets and the fact that Ash and McKennitt were intimate friends that shared a lot.

Aspects of the accusation

Ash is being accused of revealing certain secrets in her writing about McKennitt which are very sensitive. There are also different statements in the book which clearly reveal that Ash new how sensitive the information was but wrote in the book. The statements that were found in the book serve as the main evidence to the fact that Ash breached the confidentiality rule and exposed the secrets of her friend who trusted her much (Chapman & Kinsey, 57). According to the English law, a person’s privacy is a sensitive area of her life which should never be taken for granted by her friends and those closest to her. The law requires that such loyalty be maintained even if the friendship is terminated. No individual is supposed to take advantage of somebody’s situation and publicize their private information without seeking their consent. Ash may have been into her business of publishing and selling books but she was not meant to do this at the expense of her friend’s personal life (Wharton, 185). It would have been difficult to reveal how private the information shared in the book was if Ash had not personally mentioned it in the writing.

Statements in the book and their implication

On page 18 of the book, Ash clearly states that McKennitt told her some of the stories about her friends while in London. She thereafter gives a clear detail of those stories which is a clear implication of violating privacy requirements (Wright, 149). The two were engaging in a personal conversation where by a lot was revealed to the author of the book. It was basically on a friendship basis and not to be publicized in a book. In page 84 of the book, there is a statement that expressly states that the information was ‘confided to her’. This implies that she had all the reasons to keep the information but did in intentionally for personal reasons. Ash may have probably thought that there was no privacy that was attached to the information that she was revealed to and though that there would be nothing wrong about revealing them to the public (Smith, 435). The privacy that McKennitt attached to the information was not the similar privacy that Ash attached to it. What may be considered to be private and personal to one person may not be considered to be so by the other.

On page 93 of the book, she states that they were good friends with McKennitt and she revealed all her secrets to them. They also cared for her, but it was clear that they were not loyal enough to keep the secrets (Brüggemeier, 27). This is statement that clearly shows that McKennitt revealed her deep most secrets to other several people that have not been mentioned. It may also show that she knew that they would not be loyal enough to keep the secrets yet she revealed it to them. ‘We were her closest friends and she knew she could count on our unqualified loyalty’. Even though Ash revealed such information, she knew very well that it was revealed to her on the grounds of a close friend and they were hence not to be revealed to the public. The question here is how much trust McKennitt had towards her friends that she revealed such information. It seems like she was telling the friends in a group that could not really be trusted (McBride, 556). On page 82, there is an emphasis on the level of intimacy that was shared by the two friends, the ground on which the information was revealed.

On page 118 of the book, the author continually reveals on the number of things that were revealed to her by Lorena. She shared with her about her career life, her social life and her future aspirations (Slapper, 95). There was a certain kind of bond that had been developed between the two which was birthed through a long term friendship. She states clearly that she was always there for Lorena and Lorena was always there for her. This closeness made them to share basically everything that was on their minds. The judge Buxton revealed that considering the intimacy that was shared by the two friends, it was clear that Ash knew how costly it would be if she revealed the information in public. McKennitt revealed the information to a friend whom she trusted and did not hence expect that she would turn against her. Ash knew that she was revealing top and deep secrets of McKennitt and did it to attract the attention of her readers ( Yourow, 68). The case would have been different if the two were not intimate friends. McKennitt had all the valid reasons to seek for legal action to be taken against her friend who did not put value to their friendship and instead shown disloyalty by revealing what she was not meant to reveal.

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It is however to be noted that not everything that was written in the book infringed privacy rights. There much more that may have happened between the two friends that were not written in the book (Gordley, 266). The few passages that were taken from the book were to show how close the friendship was to justify the infringement of privacy rights. The violations that were observed by Buxton include the fact that Ash knew that she was not at liberty to reveal what McKennitt had shared with her to the public. The judge also noted that some of the information that was given to Ash by McKennitt about her relationship with her fiancé and her subsequent death was too fragile to be revealed to anybody (Smith, 56). Some of the matters that were observed by the judge were clearly stated in section 8, part one of the constitution where by due respect is to be given towards an individual. There was hence no point of revealing such kind of information to undeserving people.

Section 8 prohibits anybody from revealing information that is considered to be trivial concerning a person’s residence and house to the others. Matters that have been addressed in the section include the state of cleanliness of the house, the kind of decorations used and what is generally contained in the house. This are considered to be some of the personal issue that the people visiting the house need to leave behind once they walk out of the door (Arai-TakahAshi, 9). There is hence certain information that can be related to such privacy that Ash took beyond the home. The stories that the two shared were not to be taken beyond the walls that surrounded them, they were basically between them and a third party had nothing to do with it. Ash could hence be considered to be a false friend who mainly drew close to McKennitt for the purpose of revealing such secrets. Even though they were intimate friends, there could be certain strings that were attached to their friendship which were not known to McKennitt but to Ash (Sime, 446). She was basically a spy who wanted to gather information about McKennitt and publish it to make some good money. There are many things about the artist that the public was curious to know, Ash knew that by obtaining the information and subsequently revealing it, she would make a good deal of money.

There are no specifications of whether a person is visiting the other for professional or social reasons. The bottom line is that they are not supposed to reveal any detail of the home, seen or spoken to the public without obtaining permission. There are certain documents that may need to be signed in case the two are engaging in certain business deals (Moucheboeuf, 332). In case the nature of the visitation was not based on business interests, the court has a provision of prohibiting such information from being shared to the public. There are certain matters that the owner may not be sensitive enough to protect because they understand the people that they are sharing it with. For professional that carry out repairs in the house, they are also bound by the codes of their careers not to reveal what they saw in the house. They are basically in the business of conducting their work and receiving their pay but not to reveal more about the structure and make up of the house.

Conclusion

From the case analysis above, it is clear that the English law has critically addressed privacy issues. It doesn’t matter the grounds on which such information was shared or revealed (Wortley, 45). People’s privacy has to be respected by anybody who encounters them. The purpose of the law is to ensure that anybody who ascribes to such constitution is guaranteed the necessary protection. This is usually for the main purpose of protecting people from being misused by their previous friends. The secrets that they share are to remain intact even if the friendship is terminated due to certain reasons. This may however be different if the information is revealed to a third party for professional reasons (Fenwick, 166). For instance, if Ash revealed the information to a journalist for publication, the journalist will not be guilty of any offence. In as much as the law is there to protect people’s personal secrets, it may not do much to prevent such things from being revealed to the public. It is hence the responsibility of an individual to ensure that what they reveal will not affect them much in case it is spilled to the public.

Works cited

Arai-TakahAshi, Yutaka, The margin of appreciation doctrine and the principle of proportionality in the jurisprudence of the ECHR. London: Intersentia nv, 2002.

Bradshaw, Paul, & Burgh Hugo, Investigative journalism. Routledge, 2008.

Brüggemeier, Gert, et al. Personality Rights in European Tort Law, Cambridge: Cambridge University Press, 2010.

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Chapman, Jane, & Kinsey Marie. Broadcast journalism: a critical introduction, California: Taylor & Francis, 2009.

Fenwick, Helen et al. Judicial reasoning under the UK Human Rights Act. Cambridge: Cambridge University Press, 2007.

Gordley, James, An introduction to the comparative study of private law: readings, cases, materials. Cambridge: Cambridge University Press, 2006.

Hunt, Murray, Using human rights law in English courts, 1997.

McBride, Nicholas, & Bagshaw, Roderick. Tort Law, Longman Law Series. London: Pearson/Longman. 2008.

Moucheboeuf, Alcidia, Minority rights jurisprudence digest, Minority issues digest. London: Council of Europe, 2006.

Sime, Stuart, A Practical Approach to Civil Procedure. Oxford: Oxford University Press, 2007.

Slapper, Gary & Kelly, David. Sourcebook on the English legal system. London: Routledge, 2001.

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Smith, Graham, & Boardman, Ruth, Internet law and regulation. London: Sweet & Maxwell, 2007.

Smith, Simon, Image, persona and the law, London: Sweet & Maxwell, Story, Joseph, & Bigelow, Melville, Commentaries on equity jurisprudence: as administered in England and America. New York: Little, Brown and company, 1886.

Torremans, Paul, Intellectual property and human rights. WAshington: Kluwer Law International, 2008.

Wharton, Smith, The law lexicon, or Dictionary of jurisprudence. Oxford: Spettigue and Farrance, 1848.

Wortley, Ben, Jurisprudence. California: Manchester U.P., 1967.

Wright, Jane, Tort law and human rights. California: Hart Publishing, 2001.

Yourow, Howard, The margin of appreciation doctrine in the dynamics of European human rights jurisprudence. New Jersey: Martinus Nijhoff Publishers, 1996.

Zimmermann, Reinhard, & Whittaker, Simon. Good faith in European contract law. New York: University Press, 2000.

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