Breach of Confidence

Question 1

What is breach of confidence?

Answer 1

Traditionally, it has been used as an alternative to Copyright for IP rights.
Since HRA 1998 (Arts 8 and 10), there has been an increasing trend of using to protect privacy:
- Wainwright v Home Office (unsuccessfully)
- Campbell v MGN

Question 2

Coco v AN Clark Ltd (1969) Test.

Answer 2

Test for breach of confidence (trade secrets):

1) Information has the necessary quality of confidence about it (not in public domain)
2) Imparted in circumstances giving an obligation of confidence
3) Unauthorised use of information to detriment of plaintiff
4) No defences (e.g. public interest in disclosure)

Question 3

Douglas v Hello! (2005)

Answer 3

Exclusive rights to publish wedding photos were given to OK magazine. A freelance photographer sent the pictures to Hello magazine.

Held: The pictures had commercial value and so had the need for confidentiality.

Question 4

Breach of Confidence and 3rd parties

Answer 4

F Gurry: confidentiality also extends to third parties that have been told the confidential information and they are aware is it confidential.
- eg newspapers

Question 5

Relevance of the relationship of the parties…

Answer 5

Stephens v Avery (lesbian relationship)
Relationship isn’t relevant. Show recipient knew information was secret.

AG v Guardian (No.2):
Bound by confidence as soon as you know the material is confidential.

Question 6

AG v Guardian (No.2)

Answer 6

No injunction as information is already out, and therefore does not satisfy Coco test that requires a ‘necessary quality of confidence’.

Question 7

Extending BoC from confidentiality to invasion of privacy?

Answer 7

Kaye v Robertson (1991)(took pictures in hospital bed):
The Coco test can’t work here as information not to the detriment of C.
Lord Bingham: “failure of the common law” as no protection available for invasion of privacy.

Wainwright v Home Office (prison search):
Brings claim for invasion of privacy based on trespass battery and Wilkinson v Downton rule. Fails on privacy and W v D but succeeds in battery.

Question 8

Breach of confidence summary:

Answer 8

1) information must have necessary quality of confidence (Coco) so must not be in public domain (AG v Guardian)
2) Obligation of confidence (Coco) through reasonable person realising information is confidential (Campbell v MNG). No need for pre-existing relationship (Stephens v Avery) as bound by confidence as soon as they know it is confidential information (AG v Guardian)
3) Must be unauthorised use of information to detriment of the claimant (Coco), however proposed publication is sufficient (AG v Guardian)
4) Defence of public interest (AG v Guardian)