The law of breach of confidence is based upon the principle that a person who has been given information in confidence should not take unfair advantage of it. Governments, businesses and individuals use this law to protect information they regard as officially or commercially secret, or private.
The main means of preventing a breach of confidence is an injunction banning publication of confidential information. A media organisation to which a business’s commercial secrets are leaked could be successfully sued if it publishes these, unless it has a defence.
Development of privacy law
Until 2000, when the Human Rights Act came into force, UK law recognised no general right to privacy. The law of breach of confidence has two different kinds of rights:
(1) An obligation of confidence, by definition, arises, first, from the circumstances in which the information is given – a relationship which gives rise to one party owing a duty of confidence to another.
(2) By contrast, a right of privacy in respect of information would arise from the nature of the information itself; it would be based on the principle that certain kinds of information were private and for that reason alone should not be disclosed.
Official (statutory) secrets
The Official Secrets Act 1911 contains schedules of secret information. Details of military or intelligence operations are “official secrets” and therefore, revealing any information in relation to them can lead to criminal prosecution.
Elements of a breach of confidence
There are three elements in a breach of confidence:
- the information must have ‘the necessary quality of confidence’;
- the information must have been imparted in circumstances imposing an obligation of confidence; and
- there must be an unauthorised use of that information to the detriment of the party communicating it.
Obligation of confidence
An obligation of confidence can arise in a three main ways, including:
(1) A contractual relationship – such as employees who may have signed agreements not to disclose an employer’s secrets. Even if a written contract does not make it clear, there is an implied term in every employment situation that an employee will not do anything detrimental to an employer’s interests.
(2) A personal relationship – (generally dealt with in privacy law)
(3) Unethical behavior – journalists who obtain confidential information by unethical means such as trespass, theft, listening devices or long-range cameras are usually in breach of an obligation of confidence owed to the targets of this activity. However, if there were no obligation of confidence, then any such case would most likely fall within privacy law.
The detriment a party suffers from a breach of confidence could be financial loss from exposure of commercially sensitive information. The detriment could be the adverse effect on someone’s mental well-being or physical health caused by unauthorised publication of their confidential, personal information – e.g. if it causes people to ridicule or shun them.
In our lecture we talked about the Princess Caroline case. Princess Caroline von Hannover of Monaco had previously been campaigning, in various European countries, against the publication of photographs about her private life but had been unsuccessful. However, on December 15th 1999, the Federal Constitutional Court of Germany granted an injunction regarding photographs in which the Princess appeared with her children and this was because such a case was in agreement with Article eight of the European Convention of Human Rights – the respect for private and family life. The court found that there was an infringement of the article because Princess Caroline was not on a clear public duty. Since 2004 the press must now justify the public interest of a photograph of a person who holds no official public duty. This case was the creation of defacto privacy law.
A person or organisation who claims their confidential information has been unlawfully published can, as the claimant in legal action:
- ask a judge to impose an injunction to stop it being published again by that publisher or by others;
- seek a court order for the confidential material
- sue the publisher for damages, or for ‘an account of profits’;
- ask a judge to order the publisher to reveal the source of the information, if this is not known, so that legal action can be pursued against the source for damages and/or to stop more confidential information being disclosed.