Duty of confidentiality Flashcards
What articles is duty of confidentiality relevant for?
Articles 8 and 10
Breach of confidence
Where information that was supposed to be kept secret and shared in private is then shared publicly.
What are the possible actions for breach of confidence?
- If information is being threatened to be shared an injunction can be put in place to prevent the info being shared.
- Once the info has been shared, compensation may be payable to the claimant instead.
What needs to be proven for a successful claim?
1) Information was shared in a way which gives rise to a duty of confidence (eg, medical info to a doctor).
2)It must have a “quality of confidence”
3)It can arise within an employment contract.
4)It must be used in an unauthorised way.
5)The claimant must suffer a detriment from the use of the information.
What are the defences to a claim here?
1) Information is already in the public domain.
2)Information was not confidential
3)There isa public interest in the disclosure (Whistle-Blower’s defence)
HRH Prince of Wales v Associated Newspapers 2006 :
the newspaper published extracts from Prince Charles’ diaries that they had obtained secretly.
He won the case for ‘breach of confidence’ - the judge stating his case was ‘overwhelming’.
The unauthorised use of confidential information is usually based on a relationship:
Duchess of argyll v Duke of Argyll 1967:
Duke attempted to sell a story about the Duchess that he knew from their marriage. An injunction was introduced based on the basis of breach of confidence so we don’t know what the story was about.
The duty can also apply to commercial relationships:
Douglas v Hello 2001:
Hello magazine published unauthorised photos from a wedding of Michael Douglas and Catherine Zeta-Jones. Court said breach of confidence applied to these sorts of agreements but it did not apply in this case because the photos had already been sold to another magazine so clearly they did not want complete privacy.
Courts should consider the significance of the claimant’s public profile - are they already in the spotlight and seen as a role model?
A v B PLC 203 (Flitcroft v MGN):
Footballer Gary Flitcroft attempted and failed to stop a story being published about his extra marital affairs. injunction NOT granted so the story could be sold.
There is no overarching right of privacy - but a claim against ‘wrongful disclosure of private information’
Campbell v MGN 2004: Naomi Campbell case against a story about her leaving an alcoholic anonymous meeting and being a drug addict - this was deemed to be private information that should not have been shared.
There is a “balancing exercise” based on a “reasonable expectation” of privacy :
McKenitt v Ash 2006:
Ash wrote a book abut her former friend McKennit who was a well known Canadian folk singer. Ash was prevented from including certain details in her book as the court decided they had been shared in confidence based on their relationship and therefore there was a ‘reasonable expectation’ that the details would remain private.
The court will also consider the special impact made by the publication of photos such as Papparazzi of CCTV :
Peck v UK 2003:
Brentwood council released CTV images of a man who had attempted suicide slashing his wrists in attempts to show the benefits of using cctv software. ECtHR said this was a serious interference with private life as the images were seen by many more people than the victim could have ever anticipated.
