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Protecting private medical information

01 October 2019

Recent tabloid journalism about the private lives of high-profile individuals has resurrected debates about media ethics. In some cases, the conduct in question is reminiscent of that which led to the Leveson inquiry.

In particular, a journalist’s threat to disclose Gareth Thomas’s HIV status, and that journalist’s disclosure of this information to Mr Thomas’s parents, has sparked outrage. The journalist allegedly forced Mr Thomas to disclose his status, and deprived Mr Thomas of his right to share this immensely private information with his family and to the wider public, on his own terms.

This is a timely reminder of the legal protection afforded to medical information, and private family matters.

Article 8 of the European Convention on Human Rights states: “Everyone has the right to respect for his private and family life, his home and his correspondence.” There is a wealth of case law, both at an English and European level, which has confirmed that information about one’s health is protected by Article 8. For example, in a recent case concerning a ‘kiss and tell’ book, the High Court held that it is “beyond argument” that certain information about the Claimant’s health was private.

The particular sensitivity of medical information is also given legal standing by data protection law. The GDPR defines ‘health’ as a special category of personal data, and applies stricter conditions for the use of and disclosure of medical information. Data breaches involving medical information have attracted hefty penalties from the data protection regulator.

The publication of private medical information by the media is only lawful if the human rights of the subject of the article are outweighed by the publisher’s right to freedom of expression. Such circumstances are exceptionally rare.

The IPSO Editors’ Code also contains strict rules on the publication of private information. Indeed, IPSO has taken the extraordinary step of issuing a press release about these recent cases which states that “we take all complaints made under the Editors’ Code seriously, and if a complaint raised a possible breach of that Code, would investigate rigorously and sanction appropriately if required.” The main limitation of IPSO is that it cannot prevent a newspaper from publishing private information; it can only sanction them after the event. This is of limited comfort for individuals who have had their private information splashed in the tabloids.

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