The Panama Papers - strictly private and confidential?

Anyone following the wall-to-wall media and political coverage of the so-called Panama Papers over the past fortnight might be forgiven for wondering whether she or he had missed a recent Supreme Court decision abolishing the laws of confidence and privacy.

Have journalists practised due diligence before using material in the Panama Papers, asks Engel
Have journalists practised due diligence before using material in the Panama Papers, asks Engel
The vast majority of the rumoured 11 million documents apparently obtained from Mossack Fonseca are likely to be confidential and/or private.

Despite some of the finest investigative journalists working on the story for up to a year, they have been notably coy about explaining the alleged "leak". Maybe it is time for the media to be open and honest with us about how they happened to come by this information?

No Edward Snowden whistleblower has surfaced. Nobody has pointed the finger at an employee with a grudge.  

Was it a leak at all? Or was it in fact a hack? Was this information obtained by illegal access to the servers used by Mossack Fonseca? If so, who did the hacking? And what did the journalists know about it? What due diligence did they carry out into how the documents had been obtained?

Given the self-righteous tone of moral indignation adopted by much of the media, it would be ironic indeed if it turned out that they had been less than transparent with their readers and/or less than assiduous in checking out their source.  

Perhaps more importantly, the answers to these questions could be relevant to the media's legal obligations, and to the rights of individuals and families threatened with publicity around their private financial affairs.  

Yet strangely, in all the acres of newsprint, hours of broadcast and gigabytes of online coverage, journalists do not seem to have shown any interest in answering them. 

Under Article 8 of the European Convention for the Protection of Human Rights, "everyone has the right to respect for his private and family life, his home and his correspondence".  "Everyone" means everyone. That includes members of the Government, wealthy individuals and celebrities.  

Further, even if the information is not private, it may well in any event be protected by the law of confidence. There may also be data protection law implications.

In addition, the Editors' Code of Practice, administered by IPSO, prohibits the press from publishing material obtained, among other things, "by the unauthorised removal of documents or photographs; or by accessing digitally held information without consent".

The media are not therefore entitled to ride roughshod over the privacy and confidentiality rights of those who have chosen, often for perfectly sensible and entirely lawful reasons, to have some of their assets held in offshore structures. 

Of course, if the documents in question disclose serious wrongdoing, let alone criminal offences such as money laundering or sanctions busting, then the media may well have a public interest defence.
 
Prudent journalists will generally approach the subjects of such stories, or their PR team, before publication.  

That is likely to be the only opportunity gently to remind the press of their legal obligations.  

David Engel leads the Reputation & Information Protection team at Addleshaw Goddard

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