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.
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.
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:
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.
Unauthorised use of the Information
The information may have been supplied to another party in order for that party to do a specific task, for example personal information may be passed to an employee of a company for the sole use of entering the data into the company computer system. If they were to do just that it would constitute the 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 that person 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:
- Delivery up and destruction of infringing materials
- Account of Profits
- Interdict – this is where the information has not yet been divulged but it is likely that an unauthorised disclosure will occur.
*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
This is established where it is found that it would not be in the public interest to retain the information as confidential. This is very difficult to establish as the courts are often of the view that information of a confidential nature should remain confidential. There are instances, however, where they will rule that the information should be disclosed to the public as a whole, or a section of the public as it is in their interest. More frequently the defence is used upheld when the court rules that the information should be disclosed to relevant authorities such as the police or Inland Revenue.