Breach of confidence

What is breach of confidence?

Breach of confidence is a common law tort which allows individuals or businesses to go to civil court to protect secret or commercially sensitive information. The law aims to prevent people to whom the information has been divulged in confidence from using it to gain an unfair benefit.

Confidential information

For information to be shown to be confidential and to establish that a breach of confidence has occurred, it needs to be shown that:

  • the information has the necessary quality of confidence;
  • it was imparted in a manner which imposed an obligation of confidence;
  • there has been an unauthorised use of the information to the detriment of the owner.

A breach of confidentiality can arise in a number of situations where the confidential information has been divulged to a third party to the detriment of the owner, including where the information involved:

  • trade secrets;
  • government secrets;
  • private personal information;
  • professional relationships.

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 – other factors need 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, there will in certain cases 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.

Unauthorised use of the information

Information may be supplied to a third party so that party can do a specific task; for example, personal information may be passed to an employee of a company so they can enter the data into the company computer system. If they were to do just that, this would be authorised use of the information.

If that person was to use the information for any other purpose, such as disclosing it to others, that would constitute an unauthorised use of the information and they would be found guilty of breach of confidence.

Remedies available for a breach of confidence action

The following remedies are available when a successful action for breach of confidence has been brought:

  • damages;
  • delivery up and destruction of infringing materials;
  • account of profits;
  • interim injunction – this is where the information has not yet been divulged but it is likely that an unauthorised disclosure will occur. The court will make an order banning the disclosure of the information.

Lawful disclosure

There are three situations where making disclosure of confidential information is lawful. These are:

  • where the individual to whom the information relates has consented;
  • where disclosure is necessary to safeguard the individual, or others, or is in the public interest;
  • where there is a legal duty to do so; for example, a court order.