Part 8 - Confidentiality Flashcards
What are the three elements of a breach of confidence?
- The information must have the ‘necessary quality of confidence’
- The information must have been in circumstances imposing an obligation of confidence
- There must be an unauthorised use of that information to the detriment of the party communicating it
When is information not confidential?
If it is trivial or already in the public domain.
What are the conditions for a confiding party to be able to claim a breach of confidence?
The confiding party must suffer, or be at risk of suffering, a detriment of some sort, such as financial loss. The detriment could also be the adverse effect on someone’s mental well-being or physical health.
Name some ways in which an obligation of confidence can arise.
Contractual relationship, personal relationship, or unethical behaviour.
What are the remedies for breach of confidence?
People or organisations claiming in a legal action that their confidential information has been unlawfully published can:
- ask a judge to issue an injunction to stop the information being published again by that publisher or others
- seek an order for the confidential material to be ‘delivered up’ - that is, returned to the claimant or destroyed
- sue the publisher for damages or an ‘account of profits’
- ask a judge to order the publisher to reveal the source of the information, if this is not known, so that the source can be sued for damages and/or to stop disclosure of more confidential information
Name the defences to an action for an alleged breach of confidence and successful uses of these defences.
- the information did not have the ‘necessary quality of confidence’ because a) of its nature, or b) it was already in the public domain
- it was in the public interest to publish the information
Successful uses include:
- Lion Laboratories v Evans (public interest)
- Watford Observer case (public domain)
- Beckhams case (correcting a false public image)
