Breach of Confidence

What is Breach of Confidence?

The law of breach of confidence is a common law tort, meaning it is between individuals or businesses in a civil court and is designed to protect secret or commercially viable information.

Protection

This confidential information is protecting by preventing people to whom the information has been divulged to in confidence, from using that information to gain an unfair benefit for themselves. Breach of confidence is concerned solely with the restriction of the dissemination of commercially viable information.

Confidential Information  

If a certain subject would not usually be disclosed to the general public, for example earnings of those high up in the UK government, then information concerning that subject could usually be assumed to be of a confidential nature. Confidential information can usually be split into the following three categories:

  •   Trade secrets

  •   Government Secrets

  •   Private Personal Information

For information to be created as confidential and in order to establish that a breach of confidence has occurred the following needs to be   established:

  •   The quality of the information
  •   Whether there is an obligation of confidence
  •   Whether there has been an unauthorised use of the information

The quality of the Information

For the information to be considered confidential it must appear to have a confidential quality to it. A good indicator of whether information is confidential is whether it is labelled as such on the outside of a folder or if it contains a confidential watermark running through it. This, however, is by no means the sole reason which information will be held to be confidential with other factors needed to be considered. In areas such as patents or the registering of designs certain information becoming public knowledge prior to the patent or design being registered would have huge consequences for the application. In a case such as this the information would be treated clearly as confidential due to the nature of the outcome of that information being released to the public domain.

Obligation of Confidence

When secret information is dealt with in a commercial setting it is usually the case that an obligation of confidence is enforced by an express contractual provision. These are called non-disclosure agreements and are a standard business practice across many different fields. If the obligation of confidence is not expressly provided then in certain cases there will be an implied duty of confidence. An example of where this would arise is in an employment setting as employees are considered to owe an implied duty of confidence concerning trade secrets and such like to their employers.

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For more information on:

  • Unauthorised use of the Information
  • Remedies available for a Breach of Confidence Action
  • *If this is believed to be the case a court can impose a sanction to restrain any unauthorised disclosure.
  • Is there any defence for a breach of confidence?
  • Public Interest Defence