BREACH OF CONFIDENCE

Circumstances dictate many situations whereby people confide in one another and with ever increasing ways in people use electronic means of communication, more confidential information is being shared with others. This will give rise to situations where it would be unfair if the confidential information was disclosed to third parties, when this happens it gives rise to a breach of confidence.

Hopefully this article will give you a brief insight of what legal remedies you may have when that happens. Of course, this will depend on the facts of each case. This article will focus only on common law actions for breach of confidence.

What is breach of confidence action?

You must first identify clearly the information, which you claim is confidential. The House of Lords described it as being information in relation to which the person “had a reasonable expectation of privacy” (Campbell v MGN Ltd [2004]).

Breach of confidence can be a legal action based in contract and/or in equity based on equitable duty of confidence owed by one party to another. There are many circumstances, which can give rise to an obligation of confidence, for example: business relationships, professional advisers and personal relationships. It can even be extended to third parties, where a third party has received confidential information indirectly. In other words, you don’t always need to establish a duty of confidence owed in contract to succeed in a claim.

In Douglas v Hello! Ltd (no.8) in the Court of Appeal, Lord Phillips M.R. said:

“It seems to us that information will be confidential if it is available to one person (or a group of people) and not generally available to others, provided that the person (or group) who possesses the information does not intend that it should become available to others. …”

"The second requirement was that the information must have been communicated bythe confider to the confidant in circumstances of confidence. As to this requirement,Megarry J advanced the following test at p 48:

“…if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose on him the equitable obligation of confidence.” "

Although the Court of Appeal Judgement itself was reversed by the House of Lords the above still provides a useful guide to understanding what is a breach of confidence.

You will need to establish in a breach of confidence action that someone has misused information that has come into their possession in circumstances, which dictate that it should be kept confidential and there has been some unauthorised use.

What happens if the confidential information is in the public domain?

If an obligation of confidence has not been released by express or implied consent of the person entitled to the confidence, then obligation of confidence may still continue until such time the information becomes freely available public knowledge.

What remedies are available?

This will depend on the facts in each case. The remedies may include an injunction, destruction and delivery up of any material and damages.

Should anyone require legal advice on this topic please do not hesitate to get in touch with me. You can message me on LinkedIn.  

Sundeep Oberoi, Solicitor, 2 February 2018

Disclaimer: The contents of this article are for general information purposes only. Nothing in this article constitutes legal advice or gives rise to a solicitor/client relationship. The reader should obtain specialist legal advice in relation to their specific circumstances. No warranty, express or implied, is given as to its accuracy and the author does not accept any liability for error or omission.