Rural Estates Newsletter Spring 2021 - Flipbook - Page 19
Old news, fake news
What if the estate or the family suffers ongoing harm because of a news article which
was only partly true, or told only one side of the story? Can old news be cut entirely
from the web? Media outlets are reluctant to remove news articles from their archives,
seeing themselves often as ‘journals of record’. But inaccurate stories should always be
corrected, either by representation to the journalist, the editor, or to a regulatory body (to
IPSO and Impress in the case of newspapers, if the offending publication is a member of
either; to Ofcom for broadcasters).
Older stories can sometimes be removed, using the so-called ‘right to be forgotten’
under data protection law. Where personal data – information that relates to an
identifiable individual – is inaccurate, irrelevant, or out of date, the law allows you to
request its erasure. For Google and the other search engines, this means removing the
story from the search index (often as good as removing it at source, especially if the
article is on an obscure website). But you cannot use the right to be forgotten simply
because you don’t like the information and you can only use the right if the information is
personal. GDPR and data protection law is not a way to excise bad press but can help to
remove inaccurate press.
The disgruntled employee
What do you do when an errant employee posts images on Facebook from inside dirty
kitchens, or leaks confidential information to the local paper revealing the family to be
millions of pounds in debt? The response to each scenario is obviously case specific.
Sometimes, the right thing to do is take the hit and just clean the kitchens. Other times, it
will be so clearly a breach of confidence that legal action will need to be taken to secure
the leaked information, attempt to remove what has already been divulged and protect
the reputation of the family and estate.
A court will consider whether to grant an injunction preventing the publication of
confidential information (and, at trial, whether to award damages to the injured party) on
the basis of several factors. These include: did the information possess the necessary
quality of confidence, was the information already in the public domain, and was it
disclosed in circumstances in which there was an obligation of confidence (that is, did
the receiver of the information know, or should they have known, it was confidential)?
In making its decision, the court will consider the competing right to privacy with the
media outlet’s right to freedom of expression. Often, publications will invoke a defence
of ‘public interest’ to explain why previously private information should suddenly be
allowed into the public domain. An employee’s Tweet or Facebook post exposing
wrongdoing or bad practice may technically constitute a breach of confidentiality, but
the most appropriate solution may not be to rush to law, instead working with a team of
professionals to help mitigate the damage, resolve the underlying issue and protect from
further reputational harm.
Rural Estates Newsletter
Spring 2021
19
