Week 23: Breach of Confidence and Misuse of Private Information Flashcards
When does the law of delict allow B a remedy if A shares information about B?
A remedy may arise under breach of confidence, misuse of private information, or defamation if the disclosure was wrongful or unjustified.
In what circumstances might a duty of confidentiality arise?
A duty of confidentiality may arise through professional relationships, contracts, or implied obligations based on trust.
What does the Law Society of Scotland Practice Rules 2011 say about confidentiality?
Rule B1.6 states that confidentiality must be maintained indefinitely, unless waived by the client, statute, or court; it doesn’t cover future crimes a client plans to commit.
What happened in Coco v AN Clark (Engineers) Ltd [1969] RPC 41?
Coco shared his moped design with Clark for business purposes. Clark later created a similar moped, claiming the design was not copied. Coco took the case to court, but A.N. Clark won because not all elements of the breach of confidence test were satisfied, as the design could be purchased online.
What is the test for breach of confidence in Coco v AN Clark (Engineers) Ltd?
The test for breach of confidence requires:
The information must be confidential,
The circumstances of disclosure must impose an obligation of confidence,
There must be unauthorized use of the information by the defendant to the detriment of the plaintiff (harm must be shown).
What are the limiting principles of confidentiality in Attorney-General v Guardian Newspapers Ltd (No.2) [1990]?
The limiting principles of confidentiality are:
Confidentiality does not apply once information enters the public domain.
It does not apply to useless information or trivia.
The protection of confidentiality can be outweighed by countervailing public interests.
What happened in Duchess of Argyll v Duke of Argyll [1967]?
In this case, the Duke published intimate details about the Duchess’s private life after their divorce. Despite her adultery, the court held that the husband’s actions in revealing private confidences were unjustifiable, granting an injunction to prevent further publication.
What was the outcome in Campbell v Mirror Group Newspapers Ltd [2004]?
Naomi Campbell, a supermodel, sought damages for breach of confidentiality after a newspaper published covert photos of her leaving a drug treatment center. The court held that the details of her therapy were private, and despite the public interest in her addiction, the publication was not justified.
What makes a breach of confidence an actionable wrong?
A breach of confidence is an actionable wrong when the information is confidential, not trivial or useless, and not already in the public domain, and when the person to whom the information was disclosed owes a duty of confidence.
Should the law recognize a right of privacy?
The law does not recognize a general tort of invasion of privacy, as shown in Wainwright v Home Office (2004). The Court recognized privacy under the common law of breach of confidence, but did not establish a broad right to privacy due to the Human Rights Act 1998’s influence.
What is the essence of the tort of misuse of private information?
According to HRH Prince of Wales v Associated Newspapers (2008), the tort is about the misuse of private information, which differs from breach of confidence. The law imposes a duty of confidence for information regarded as private rather than strictly confidential.
What are the key articles from the European Convention on Human Rights (ECHR) relevant to misuse of private information?
Article 8 guarantees the right to respect for private life, while Article 10 protects freedom of expression. Both are balanced in privacy cases, with courts weighing individual privacy rights against public interest in freedom of expression.
How does Campbell v MGN Ltd balance privacy and freedom of expression?
Campbell v MGN Ltd adapted breach of confidence law to address misuse of private information, balancing the right to privacy (Article 8) against freedom of expression (Article 10). Courts must weigh public interest and whether the information was private.
What was the ruling in Ferdinand v MGN Ltd regarding privacy for public figures?
Ferdinand v MGN Ltd held that even though Ferdinand was a public figure, he had a reasonable expectation of privacy regarding his personal relationship. However, the court ruled that the defendant’s freedom of expression outweighed Ferdinand’s right to privacy, dismissing the action.
How does McKennitt v Ash apply Articles 8 and 10?
In McKennitt v Ash, the court determined whether Article 8 (privacy) was engaged, considering whether there was a reasonable expectation of privacy. If so, it balanced this against Article 10 (freedom of expression) using a proportionality test.
What is the key test for balancing privacy and freedom of expression?
Re S (A Child) [2005] states that neither Article 8 (privacy) nor Article 10 (freedom of expression) has precedence. Courts must balance the importance of the rights in each case, applying proportionality and justifications for interfering with each right.
What factors do courts consider in the balancing of privacy and freedom of expression?
Courts look at whether the article contributes to public debate, the subject’s public profile, prior conduct, the method of obtaining information, and the effect of publication, as seen in Axel Springer AG v Germany (2012).
How did Murray v Express Newspapers apply privacy law to children?
Murray v Express Newspapers recognized a child’s reasonable expectation of privacy, particularly when a photograph was taken without consent in a public place. The law should protect children from media intrusion, even in public spaces.
What did the Duchess of Sussex v Associated Newspapers Ltd (2021) case involve?
In Duchess of Sussex v Associated Newspapers Ltd, the Duchess of Sussex claimed copyright infringement over parts of a private letter she sent her father. The court ruled that the defendant had to cover the costs of the summary judgment application, finding that her privacy rights were infringed.
How does BC v Chief Constable of Police Scotland apply privacy in workplace settings?
BC v Chief Constable of Police Scotland involved derogatory messages in a police officer’s group chat. The court found that there was no reasonable expectation of privacy regarding these messages, dismissing the claim.
What privacy violation occurred in Richard v BBC (2019)?
In Richard v BBC, the BBC was found liable for infringing Sir Cliff Richard’s privacy rights by broadcasting his house search during a criminal investigation. The court ruled that Richard had a reasonable expectation of privacy as a suspect.
What privacy issue was addressed in Bloomberg LP v ZXC (2022)?
Bloomberg LP v ZXC held that once it is established that a person is under criminal investigation but has not been charged, there is a reasonable expectation of privacy regarding such information, subject to specific case circumstances.
