16. Breach of Confidence/Privacy

Question 1

Prince Albert v Strange (1849)

Answer 1

often referred to as the origin of BOC (but there were cases involving BOC before this case)

“breach of confidence… would itself entitle the plaintiff to an injunction”

Question 2

Seager v Copydex (No.1)

Answer 2

D tried to make his own carpet brick but was almost exactly the same as C’s (called it the same)

BOC
- doesn’t matter if D was innocent and just subconsciously remembered

Question 3

Campbell v Mirror Group Newspapers

Answer 3

NO tort of privacy per se but there is a tort of misuse of private information

Question 4

Vidal-Hall v Google Inc [2015]

Answer 4

Two separate paths (distinct): (Lord Dyson MR)

ONE – the traditional action for breach of confidence

TWO – protection of private of personal information

Question 5

Coco v Clark [1969]

Answer 5

FOR BOC, C must show

1. confidential information
2. D owes C obligation to keep information confidential
3. unauthorised use

Question 6

John Zinc v Lloyds Bank

Answer 6

C must specify exactly what information is confidential

D has a right to know exactly what needs to be defended

Question 7

Suhner v Transradio

Answer 7

C gave D 246 documents

• said 100 was confidential
• said 146 contained some confidential information

REFUSED to grant an injunction (very difficult to know precisely what information it is which C says is confidential)

Question 8

Ocular Sciences

Answer 8

Unless confidential information is properly identified, the injunction might be of uncertain scope and difficult to enforce

Question 9

Seager v Copydex (No.1) (springboard doctrine)

Answer 9

information might be public but still can’t use confidential information used in negotiations as a springboard to get to the result

Question 10

Examples of subject matter that has been protected:

Answer 10

carpet grip
designs of F1 cars
TV programme
genetic structure of nectarine tree
medical lectures
culture/religious secrets of aboriginal community

Question 11

4 limits on kinds of information

Answer 11

excluded information:

1. trivial information
2. immoral information
3. vague information
4. information in public domain

Question 12

AG v Guardian Newspapers

Answer 12

government information is NEVER trivial

courts can’t decide if it is important or trivial

Question 13

Mills v News Group Newspaper

Answer 13

address of Heather Mills = not trivial information

PROTECTED

Question 14

Douglas v Hello!

Answer 14

majority: celebrity wedding photos = not trivial (“no principled reason” why it shouldn’t be protected)

minority (Walker): trivial

Question 15

Mosley v NGN (immoral information)

Answer 15

Eady J: in modern society, questionable whether you can call sexual activity immoral if adults and consenting

courts hesitant to say something is immoral (no code of morality)

Question 16

De Maudsley v Palumbo

Answer 16

idea:

1. open all night
2. high quality sound in enclosed dance area
3. hi tech industrial warehouse
4. separate areas
5. top DJs

INFORMATION TOO VAGUE (aspirational and speculative, not sufficient developed)

• only novel thing is open all night
• other features = common

IDEA that is ASPIRATIONAL or DESIRABLE GOAL (“would it be great if…?” will not be protected by the action)

Question 17

Talbot v General Television

Answer 17

new concept for a TV show was protectable because it was ‘capable of being realised in actuality’ (NOT TOO VAGUE)

Question 18

Fraser v Thames

Answer 18

WHETHER IT IS TOO VAGUE = Q OF FACT

dependent on case at hand

• for TV show, no need for full synopsis
• normal practice is just general proposals as protected

Question 19

Coco v Clark (info in public domain)

Answer 19

public domain = “relative secrecy”
- some people can know and it is still secret (Price Albert v Strange)

status of information = Q of fact not intention
- can intend to publish but then don’t (not in public domain)

Question 20

Douglas v Hello (info in public domain)

Answer 20

each photo was not equivalent to a verbal description of the event

each photo = separate piece of information (so disclosure of some photos does not deprive other photos of their quality of confidence)

DISSENT: nothing left confidential in photos

Question 21

BBC v HarperCollins Publishers

Answer 21

Publication does not ‘reveal’ information if it is merely speculative

• here, newspapers were not understood as speculation but statements of fact
• not secret

Question 22

Franchi v Franchi

Answer 22

information published in patent in Belgium

• patent agents inspect foreign patents so information is in public domain

Question 23

AG v Guardian Newspapers (public domain?)

Answer 23

Where info widely available no need to restrain further publication regardless of how the info reached the public domain

• if information is widely available, not confidential anymore
• but first release can still be a wrong

Question 24

Potters Ballotini v Weston Baker

Answer 24

Can be confidential information even if it can be reversed engineered from information that is available publicly

“SPRINGBOARD DOCTRINE”

• if one party uses information obtained in confidence
• protection lasts for how long it would take to reverse engineer and find out information by reverse engineer

Question 25

Coco v Clark (obligation of confidence)

Answer 25

Q: would a reasonble recipient have realised the information was given to them in confidence? ``` OBJECTIVE TEST NO obligation usually - normal conversation - blurt out in public - informal social setting ``` YES obligation - disclosure for limited purpose

Question 26

situations where obligation of confidence can arise

Answer 26

1. contractual provisions 2. relationship between the parties 3. from manner of communication

Question 27

Faccenda Chicken v Fowler

Answer 27

ex-employees trade secrets = always protected commercially sensitive information = protected during only (after, only if there is express contractual provision) general skill and knowledge of E = never protected

Question 28

is it a trade secret?

Answer 28

consider: nature of employment nature of information did R impress on E confidentiality of information? ease of isolation of information from other information E is free to use

Question 29

AG v Guardian Newspapers (obligation of confidence)

Answer 29

Obligation of confidence arises if the recipient knew, or ought to have known that the information was confidential

Question 30

AG v Guardian Newspapers (unauthorised use)

Answer 30

no need to show detriment to C usually for unauthorised use BUT if government information NEED to show detriment it seems

Question 31

Lion Laboratories v Evans

Answer 31

public interest defence can be used | - can go to newspapers instead of to the police authorities behind closed doors (less effective)

Question 32

Woodward v Hutchins

Answer 32

public interest --> YES if setting the record straight

Question 33

Douglas v Hello! (in public interest defence)

Answer 33

MUST be in public interest NOT of public curiosity | interesting is not the asme as public interest

Question 34

Von Hannover v Germany

Answer 34

ONE - zone around person's life that can be regarded as private life TWO - photos taken in climate of continuous harassment by the process (decisive) THREE - distinguish between (a) reporting facts contributing to debate, (b) details of private life of individual not exercising official functions

Question 35

HRH Prince of Wales v Associated Newspapers

Answer 35

diary about Chinese officials - friend passed it onto the press COULD USE BOC or art.8 HERE

Question 36

Campbell v MGM (MOPI)

Answer 36

misuse of private information: 1. reasonable expectation of privacy 2. interference with art.8 3. interference justified by art.10? 4. balance factors

Question 37

Murray v Express Newspapers (privacy)

Answer 37

``` Is art.8 engaged? consider: - attributes of C - nature of activity engaged in - place happened - purpose of intrusion - consent? - circumstances it reached hands of published - effect on C ``` art. 10? - is publication highly offensive to objective reasonable person in shoes of C?

Question 38

Spelman v Express Newspapers

Answer 38

no expectation of privacy - athelete - 18

Question 39

Von Hannover v Germany (art.10)

Answer 39

debate of public interest = intrusion of private life might be justified

Question 40

Donald v Ntuli

Answer 40

CA adopts test: does the information contribute to a debate of general interest? disclosure of relationship is fine no disclosure of intimate sex detals

Question 41

Axel Springer v Germany

Answer 41

court stressed importance of FOS in democratic society - art.10 restrictions cannot be arbitrary or suppressed more than necessary - proportionality test consider: - contribution to a debate of general interest - well known person? - prior conduct of person concerned - method of obtaining information - content of publication

Question 42

Von Hannover v Germany (No 2)

Answer 42

ski trip photos - debate of public interest - why is she out when she should be looking after father

Question 43

Mosley v News Group Newspapers Ltd (justification of infringement)

Answer 43

public interest? - not here, it wasn't actually a Nazi role play criminality - this is desperate - these crimes aren't usually prosecuted public role/sexual morality - nothing can justify the scale of reporting - consensual sexual activity

Question 44

Mosley v UK

Answer 44

art.8 did not mandate a prepublication notice requiremnet

Question 45

K v News Group Newspapers

Answer 45

when balancing factors consider families of parties to litigation - courts consider K's art.8 rights AND his child's rights

Question 46

Re S (A Child)

Answer 46

NEITHER article has pre-eminance weigh competing convention rights with focus on specific facts of case here criminal proceedings --> art.10 more important