Legal Update: Revealing people's earnings

By Rod Christie-Miller

Last week the London Evening Standard splashed on "Doctor Cash", a GP who reportedly earned £270,000 last year. The doctor claimed it was nobody else’s business how much he earned, a sentiment echoed no doubt in the Belgravia penthouses and stately piles of those billionaires named in The Sunday Times Rich List. So, is it really anyone else’s business how much people earn? Not really.

In a nutshell, any information which is private or has the "badge of confidence" should not be published unless it is in the public interest to do so. This throws up three issues that Doctor Cash or the billionaire would have to grapple with: what information is private or confidential, what information is in the public domain and what information would it be in the public interest to publish?

Firstly, what information is private or confidential?

Confidence has existed for a long time as a legal concept and it overlaps with the newer concept of privacy arising from the Human Rights Act and cases such as Schillings’ success for Naomi Campbell in her case against the Mirror after the paper published pictures of her leaving a Narcotics Anonymous meeting. To determine whether information is confidential, the law seems to prefer a you-will-know-it-when-you-seeit approach and asks whether it "has the badge of confidence".

Similarly, in respect of private details the law asks whether the person had a "reasonable expectation of privacy" in respect of the information in question. Generally, it all depends on the facts.

One practical way to assess whether information is confidential or private is to position it on a notional scale. At one end of the scale is information that we would all recognise as private or confidential: medical information for example. At the other end of the scale is publicly available information of a trivial nature which none of us would be concerned about revealing to others — the colour of our hair, perhaps.

Where do our finances fall on this scale? Ask yourself how happy you would be if your colleagues or neighbours were told how much you earned or how much you owed on your credit cards and to the bookies.

In those circumstances, we would probably all agree that personal finances are just that: personal, and should come high up the list of information that you are entitled to keep confidential and private. The starting point should therefore be that details of Doctor Cash or the billionaire’s personal financial situation should not be published.

Second, however, comes the question of whether details of those finances are already in the public domain. This all depends on how and where the assets are held. There are, of course, legal requirements that certain information is required to be made publicly available. Pay and bonuses of public company directors are included in Companies House submissions, for example. However, even if details of the assets are in a publicly available form, they might not be considered "public"

for these purposes if specialist knowledge is required to access that information. So if it takes skill and application to uncover details of an individual’s interest in, say, a blind trust held in Liechtenstein, then by very reason of the difficulty in accessing that information it is probably not in the public domain. As such, the billionaire can argue that he has a right to prevent publication of that information, unless of course it is in the public interest to publish it.

What is in the public interest? It is not simply information or a story that the public will be interested in. Instead, for a publication to be in the public interest it must be a "legitimate matter for public comment". Whether that billionaire’s finances are a legitimate matter for public comment will depend on the billionaire himself. For example, does any of his income derive from public sources, as there could be a public interest in publicising how taxpayers’ money is spent? (This could be used as a justification for publishing details of Doctor Cash’s finances, of course.) Has the billionaire made any false or misleading statements about his assets in the past, because if he has, it is usually in the public interest to expose hypocrisy. Similarly, the courts will not allow anyone to claim confidentiality in respect of criminal or immoral activity as it is in the public interest to expose such wrongdoings.

If the billionaire’s billions come from suspect dealings, he is unlikely to be able to claim confidentiality to avoid having them detailed in public. However, the courts are more willing to protect personal confidential information than ever before: they can prevent the re-publication of particularly sensitive information even after it has been put in the public domain by other sources. Perhaps the billionaire will bite back at a "fat-cat" jibe soon, and if he does the laws of confidence and privacy could just help him to do so.

Rod Christie-Miller is a partner in the media team of Schillings solicitors

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