Off the record comments can be protected by law of confidence, says expert

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.