Confidentiality/Privacy Flashcards
What are the necessary elements of confidentiality?
Quality of Confidence
Actual or Threatened Unauthorised Use
Circumstances give rise to duty of confidence
What does Quality of Confidence mean?
Information of a kind that has rights to not be shared
What other element can be included in appropriate cases?
Identify the information
What element is relevant to government cases?
Disclosure is contrary to public interest
Explain ‘information recieved in circumstances giving rise to obligation of confidence’
When a reasonable person (in the shoes of the recipient) could’ve realised the information given was in confidence - it is sufficient to impose upon recipient the equitable obligation of confidence’
Can a third party become bound by the confidence obligation?
Yes - it will depend on the circumstances. They’re restrained from using information once aware it’s confidential.
What if information is obtained by surreptitious?
May be enough to put third party on at least constructive notice of a breach of confidence or wrongdoing.
What is the element appropriate in some cases, in detail?
Identifying the specific information that was confidential and breached
What are the defences for a breach of confidence?
Only one in Aus -where secret information is disclosed to reveal an ‘inquity’
Define ‘inquity’
Person who’s seeking confidientiality is doing so to prevent diclosure to a third party with a real or direct interest in redressing the crime, wrongdoing or misdeed
what are the remedies for breach of confidence?
only the confider can obtain a remedy. Options are injunction and damages
What is information privacy?
Theres State and Federal for ‘personal information’
State applies to collection, use and disclosure of information by State public sector agencies
Federal applie to Federal public sector agencies an private organisations - Entertainment industries fall under this one
Define ‘personal information’
Information or opinion whether true or false, about an individual whose identity is apparent or can reasonably be ascertained from information or opinion
Whats prohibited in communication privacy?
Intercepting communication passing over telecommunication system. Listening or recording of a private conversation that the party is not involved in.
Define ‘private conversation’
A conversation between one person to another person(s) in a fashion that indicates conversation is only to be listened to by parties involved
What are the exceptions to the interception of a private conversation
Using a liscenced device with a warrant or authority, Also, unintentionally overhearing a conversatino
What are the laws on recording a conversation?
Prohibitations against persons communicating/publishing conversation from unlawflu use of a listening device. Doesn’t prohibit recording of conversation by party in conversation - does prohibit exposure to a third party
What are the exceptions of sharing a recorded conversation to third party?
Another party to the converstion with expressed or implied content by all parties involved. Made course in legal proceedings - no more than is reasonably necessary in public interest, performance of a duty of person making communication and for protection and a person reasonably believed to have interest in the conversation
How can Personal Privacy occur?
Unreasonable intrusion, public disclosure of private facts, publicity which presents plaintiff in a false light in public eye and appropriation of plaintiff’s name or image
What are the four elements of the tort for unreasonable intrusion?
- A willed act by the defendant
- Intrudes upon the privacy or seclusion of the plaintiff
- In a manner which can be considered highly offensive
- Cause plaintiff detriment in the form of mental physiological or emotional harm or distress or which prevents or hinders plaintiff from doing an act which they’re lawfully entitled to
What other protection for a person is there?
Defamation, trespass to land and breach of confidentiality
What are the remedies for a breach of privacy?
Damages and where appropriate “Aggravated” or “Exemplary” damages
Injunction for film, photo, tape, Interview during course of trespass, self-help may be invoked to forcibly eject a trespasser
