29 terms

Breach of confidence

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Fraser v Evans [1969] 1 QB 349 at 361
'No person is permitted to divulge to the world information which he has received in confidence.
What is required for breach of confidence?
To bring a lawsuit for breach of confidence, a plaintiff
has only to show:

- the information is not in the public domain; and
- it is confidential - that is, it was passed on in circumstances that made it clear it was to be treated confidentially; and
- it was disclosed (or is about to be disclosed) without authorisation.

There is a defence of public interest.
Attorney-General v Guardian Newspapers Ltd. (No.2) [1988] 3 All ER 545 (facts)
- The Spycatcher affair began in 1985, when the British Government started proceedings against the book being published in Australia. It lost the action in 1987. By late 1987 Spycatcher was the number one hardback bestseller in the US, selling 400,000 copies
- Although the government had succeeded in gagging the British media for a time, it failed to prevent the book's disclosure anywhere abroad. In November 1991 the European Court of Human Rights found the government's actions had violated the right to freedom of speech. Peter Wright died a millionaire in April 1995 aged 78.
Attorney-General v Guardian Newspapers Ltd. (No.2) [1988] 3 All ER 545 at 658. (The Spycatcher case).
- that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others.
Coco v A.N. Clark (Engineers) Ltd (what is required for breach of confidence - three elements)
-The information must have the necessary quality of confidence about it
-Information must have been imparted in situations importing an obligation of confidence
-There must be unauthorised use of the information to the detriment of the party expecting confidence.
A-G for England and Wales
Hellewell v Chief Constable of Derbyshire [1995] 4All ER 473 at 476
(what is information imparted in confidence? - relationships)
Special services officer wanted to write about his experiences. There had been a confidentiality clause signed by him.- Courts found that there was sufficient consideration for the clause to have effect.
- GR: Confidentiality can be contracted, provided that there is sufficient consideration.
Hellewell v Chief Constable of Derbyshire [1995] 4All ER 473 at 476 - An express contractual undertaking is not necessary.
Ashworth Hospital Authority v MGN Ltd [2002] 4 All ER 193
(implication - professional confidences)
Ashworth: Doctor-patient relationships are confidential. This applies to all professional relationships.
Argyll v Argyll [1967] Ch 302
Stephens v Avery [1988]
(domestic relationships)
Argyll: Domestic relationships have an expectation of confidence
Stephens - to most people 'the details of their sexual lives are high on the list of those matters which they regard as confidential.'
Stevenson, Jordan and Harrison Ltd. v MacDonald and Evans [1952]
Thomas Marshall Ltd v Guinle
(employer/employee) - principles
Stevenson - An employee may not disclose any of his / her employer's trade secrets. Recognised they will come across them in their work. The servant when he leaves cannot be restrained from using the knowledge so acquired so long as he does not take away trade secrets or lists of customers.

Per Megarry VC.
Four elements of protecting trade secrets must be met for breach of confidence to be successful:
-Owner believes the release of information will cause injury;
-Owner believes that the information is not public knowledge;
-These beliefs are reasonable, and;
-The information is judged in the light of uses and practices of that particular industry or trade.
Lady Archer v Williams (employer/employee)
- Ex-employee was had injunction granted against them for publishing secrets discovered during their employment.
Wilson v Broadcasting Corporation of New Zealand, [1990] 2 NZLR 565
(business negotiations)
The subject matter of the negotiations will often be of such a nature that it is obvious that any information imparted is being imparted in confidence. The recipient will be restrained from publishing such information to the world.

Wilson: subject matter of negotiations always something which will be confidential
Jonathan Cape
Spycatcher (also) (see flashcard 2)
(government secrets)
Jonathan Cape: Government secrets should not be disclosed by government employee
G v Day [1982] 1 NSWLR 24
S 68 Evidence Act 2006
(reporter and source)
- It is a well-established ethical principle that reporters and the media should respect the confidentiality of their sources. In at least some cases it seems that the law will be prepared to enforce this confidentiality

S 68 Evidence Act 2006 - If a journalist has promised an informant not to disclose the informant's identity, neither the journalist nor his or her employer is compellable in a civil or criminal proceeding to answer any question or produce any document that would disclose the identity of the informant or enable that identity to be discovered.
Hellewell v Chief Constable of Derbyshire [1995] 4 All ER 473.
(information received by police)
- is confidential
- photos were only supposed to be shown to certain people - shown to others
Carter Holt Harvey Forests Ltd v Sunnex Logging Ltd [2001] (mediation)
- as in negotiation - acknowledged that the successful mediation or arbitration of disputes normally requires an acceptance by all those involved of an obligation of confidence
Douglas
Venables v News Group Newspapers
(breach of confidence - media) - how essential is a relationship - UK)
Douglas: Other magazines have to abide by an obligation of confidence where an other magazine has entered into an exclusive contract to publish photos of a wedding.
This case also succeeded in a claim of Privacy.

Venables: There is an obligation of confidence where there has been name suppression
R v X (how essential is a relationship? - NZ)
- Relationships are not required for breach of confidence.
- Information will be protected if there is a reasonable expectation of confidentiality or privacy, or if the defendant had previously agreed to keep the information confidential.
Coco
JK Rowling
(detriment?)
Coco: 'there must be an unauthorised use of that information to the detriment of the party communicating it.'


Rowling - could argue she had detriment - but this could also be argued to be a benefit - ppl know who she is, etc
Exchange Telegraph Co. Ltd. v Howard (1906) 22 TLR 375.
(rights against the media)
Exchange - If media have used disreputable means to extract the information from the confidence breaker all remedies will be available against it
Argyll
Wellington Newspapers
(now about breach of confidence)
The media will be liable where they have knowledge that the information has been divulged in a breach of confidence, even if there is no instigation on their part.

Wellington - The newspaper was plainly on notice that it might be acting in breach of that Government's legal rights and deliberately took the risk .
Stevenson, Jordan and Harrison Ltd
(does not know, and could not be expected to know, that the information is confidential?)
If the media receives information and does not know, or could not be expected to know, that the information is confidential, they will not be liable.
Hunt (NZ position - current)
Liability can follow if the third party recipient has acted unconscionably in relation to the acquisition of the information or in the way it has been employed. The factors to be considered in a given case will include:
• the nature of the information;
• the state of knowledge of the acquirer of the confidential information;
• the extent of any breach;
• what kind of detriment has or might result to other parties;
• the degree of "culpability" of the third party acquirer and discloser.

The list is not a closed one.
Tony Veitch (NZ Position)
- Here, police released confidential information about Veitch under an Official Information Act claim. The courts awarded an injunction to prevent the release of the information to the public
Spycatcher
Prebble
Douglas
(defences - has become public knowledge)
Spycatcher: Eventually the injunction was lifted because the information was so widespread that it was considered to be in the public domain
- Where the plaintiff is a government which has to show public harm to establish a cause of action, wide prior publicity will mean that the damage has already been done, and the defendant's act of publishing cannot add to it.

Prebble: The Courts won't let the person who first divulged the information use the defence of public knowledge.

Douglas** - good discussion in this case - Once the information is in the public domain, it cannot be the subject of confidence. Whether there is still a point in enforcing the obligation of confidence depends on the facts.'
A-G v Guardian Newspapers (position of original confidant)
If the original confidant caused the publicity from the initial breach, they will be prevented from republishing.
- defense is a balancing exercise
A-G for UK v Wellington Newspapers (harm caused)
- The information must be of real concern to the public, not just of interest.
- If the public interest outweighs the harm of publication, they will be allowed to publish it.
European Banking Corporation
Francome v Mirror Newspapers
Stepping Stones

(public interest defense)
European: Public interest is decided at trial.
Francome: Public interest is not the same as the media getting a good story.
Stepping Stones: Public interest may be satisfied by passing the information on to an authority rather than publishing it.
Attorney-General for United Kingdom v Wellington Newspapers Ltd.

Spycatcher

Guardian
(pi defense limitations)
Wellington: 'By public interest is meant something more than that which catches one's curiosity or merely raises the interest of the gossip. It is something which may be of real concern to the public

Spycatcher: Difficult to apply pi defense where it is not clear the information is true

Guardian: in any event, a mere allegation of iniquity is not of itself sufficient to justify disclosure in the public interest.
Injunctions, account of profits, damages

(remedies)
- account of profits often good if you think you could get profit from sales
- injunctions onviously only good is publication ongoing
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