Sensitive Health Information in the Media: Responsibilities of Information Fiduciaries

In this chapter, we call for a heightened focus on trust and trustworthiness in cases involving healthcare and other health-related entities that deal in people's sensitive health information which then ends up in the media. In doing so, we introduce the concept of 'information fiduciary' and argue that this concept can, and should, be used to frame in doctrinal terms the responsibilities of information fiduciaries under confidentiality, privacy, and data protection laws. We argue that those designated as information fiduciaries may be viewed as having responsibilities to act proactively to protect trust, and not just in the design of systems and practices to secure information, including the responsibility to go to court in an effort to stop or respond to an anticipated third-party breach. We point to the recent trend in UK courts awarding injunctions against publication by persons unknown as an exemplar of this extended information fiduciary responsibility.