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When can papers you're carrying be photographed?

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Briefing papers carried by Caroline Flint

Two minsters have been left red-faced after documents taken to a Downing Street briefing were photographed and enlarged. Is it legal to do this?

Carrying a see-through file in one hand, housing minister Caroline Flint walked the usual line-up of photographers as she arrived at Number 10 to brief the Cabinet on the forecast for house prices. With widespread concern about the economy, it's no surprise that the gloomy predictions within made headlines.

The same day, Communities Secretary Hazel Blears was spotted with an e-mail print-out on the subject of the prime minister taking part in an Apprentice-style TV programme, to be called Junior PM.

And last November, Heather Mills was photographed carrying an open notebook on which she had written details of access to the matrimonial home during her divorce battle with Sir Paul McCartney.

Is this something we all need to worry about?

In legal terms, the biggest concern is privacy. Although there is no right to privacy written into English law, the incorporation of the Human Rights' Act changes that. The one problem with this is that there are very few cases to use for a precedent.

Communities Secretary Hazel Blears
The long lenses of the media peeked over Hazel Blears' shoulder

A lot depends on what the document is. "When carrying something which is inherently personal, even in a public place, there is a reasonable expectation of privacy," says Hanna Basha, who specialises in media law at London firm Carter Ruck. This might be a doctor's letter, a open diary or a private letter.

But politicians have less of an expectation of privacy than others. The only real exception would be if they were carrying papers that dealt with an issue of state security or one covered by the Official Secrets Act.

It could be argued that even documents on a private matter - if in the possession of a public figure and in the public interest - can be photographed and published. If a politician strong on family values were to be seen with a letter from a lover, this is deemed to be in the public interest.

Who owns copyright

Does whoever wrote the document have copyright ownership of it? For instance, if JK Rowling walked along Edinburgh's busy Princes Street whilst unwittingly displaying a page from her latest opus, can this be photographed and reported?

Ms Basha's advice is that, based on previous cases, a newspaper can report on the content generally but not the extract itself. JK Rowling could claim, rightly, to have copyright of the actual words.

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How can such a rule apply to government briefings? "Whether or not it's the author themselves carrying the papers, someone somewhere owns the copyright. It will most probably be their government department, or the person who did write it," says Ms Basha.

For the government ministers, there's no obvious breach of confidence. However, if Caroline Flint had passed the housing papers on to a friend, in confidence, and they subsequently gave these to the press, that is a blatant breach of confidence. "In both of these cases, the relationship is set up more clearly from a privacy point of view rather than a breach of confidence."

Ministers might be better off stowing their papers in a less transparent way. In a red leather box, for instance.



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