Breach of Confidence

Question 1

What does the claimant need to show in order to establish a a claim for breach of confidence?

Answer 1

This comes from ‘Coco v Clark’:

To establish a claim for breach of confidence claimant must show that:

1. The information is capable of being protected;
2. The defendant owes the claimant an obligation to keep the information confidential;
3. The defendant used the information in a way that breached the duty.

Note the second limb has probably been superseded by the “reasonable recipient test”.

Question 2

What do we need to do in order to establish that the information is capable of being protected?

Answer 2

(1) need to particularise the information so that information said to be confidential can be adequately identified (Ocular Science v Aspect Vision);
(2) Also note there is no limit on the type of information that can be protected. However, note Courts will not protect trivial information.

Question 3

What do we need to consider when determining whether defendant owes claimant an obligation to keep the information confidential?

Answer 3

(1) This is a legal obligation, not merely a moral one (AG v Johnathan Cape).
(2) The modern approach was confirmed by the Supreme Court in Vestergaard Frandsen v Bestnet Europe. This requires the defendant to have received the information in circumstances where he or she had agreed, or ought to have appreciated, that the information was confidential. This is sometimes called the “knowledge or notice” test
(3) In answering (2), must consider other factors–see other slides

Question 4

What factors to consider when determining if the defendant received the information in circumstances where he or she had agreed, or ought to have appreciated, that the information was confidential?

Answer 4

(1) Nature of relationship (e.g. doctor/patient) puts someone on notice that that info is confidential.
(2) Contractual obligations (expressed or implied)
(3) Express statement, which are pretty difficult to dispute
(4) where disclosed for a particular purpose, may imply a duty to only use the information for that purpose.
(5) existence of IP rights usually siuggests there is no confidence obligation.
(5) third party that receives information (from person who breached it) and knows or ought to know that it is confidential, has an equitable obligation of confidence as on notice.

Question 5

How to determine whether obligation of confidence has been breached?

Answer 5

When employed, you have a general obligation to keep confidence (but can be express provision in contract that will be enforced by the courts) so disclosing information when employed will clearly breach confidence.

After employment, there may be an implied duty to keep former employer’s confidence and if this implied duty exists, then disclosing information will be a breach of confidence.

From ‘Faccenda Chicken v Fowler’, 4 factors were established in order to determine whether there was an implied duty of confidence after employment:

(1) the nature of the employment (how close to the centre of the employer’s business?);
(2) the nature of the information (protection not available for general business methods);
(3) Did the employer impress on the employee the confidential nature of the information?
(4) Can the information be easily isolated from other information (e.g. general information which someone picks up from working at the company)?

Question 6

What are the defences to a breach of confidence?

Answer 6

(1) Consent or authorisation;
[such consent can be expressed or implied]

(2) Public interest defence;
[Gartside v Outram: there is no confidence as to the disclosure of iniquity (immoral or grossly unfair behaviour)

But one public interest can outweigh another public interest (freedom of information v safety of the public)]

(3) Statutory immunities.