Breach of Confidence

Luiza Balan
University of Leicester

Breach of Confidence
Breach Of Confidence
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CONTENTS
Introduction ........................................................................................................................................................................ 2
International influences ............................................................................................................................................ 2
Doctrinal basis of the action .................................................................................................................................... 2
Breach of confidence and private information ................................................................................................ 2
Elements of the action .................................................................................................................................................... 3
Is the information capable of being protected? .............................................................................................. 3
Trivial information ................................................................................................................................................. 4
Immoral information ............................................................................................................................................. 4
Information that is vague .................................................................................................................................... 4
Information in the public domain .................................................................................................................... 5
Novel and original information ......................................................................................................................... 8
Private information ................................................................................................................................................ 8
Obligation of Confidence ........................................................................................................................................... 9
Direct relationship .................................................................................................................................................. 9
Strangers ................................................................................................................................................................. 11
Employees ............................................................................................................................................................... 12
Statutory obligations and public bodies ..................................................................................................... 14
The defendant used the info in a way that breached that duty ............................................................. 14
The scope of the obligation .............................................................................................................................. 15
Has the obligation been breached? ............................................................................................................... 16
Defences ............................................................................................................................................................................ 17
Consent or authorisation ....................................................................................................................................... 17
Public interest ............................................................................................................................................................ 17
What is the public interest? ............................................................................................................................. 18
Freedom of expression ........................................................................................................................................... 19
Miscellaneous immunities .................................................................................................................................... 20
Private information ...................................................................................................................................................... 20
Remedies ........................................................................................................................................................................... 23
Interim relief restraining publication .............................................................................................................. 23
Interim relief restraining use............................................................................................................................... 23
Permanent injunctions ........................................................................................................................................... 23
Damages ....................................................................................................................................................................... 24
Account of Profits ..................................................................................................................................................... 24
Constructive trusts ................................................................................................................................................... 24
Criminal law ................................................................................................................................................................ 25
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INTRODUCTION
Keene LJ: breach of confidence is a developing area of the law, the boundaries of which are not
immutable but may change to reflect changes in society, technology and business practice.
It operates as a supplement to the statutory intellectual property framework by enabling
organisations to invest in and carry out research. It also operated to protect individual autonomy,
personality, and privacy. It promotes fair competition by encouraging respect for agreements.
The origin of the breach of confidence action are obscure, although it is clear that by the 19
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century the courts had developed a series of principles, mainly stemming from Megarry Js
judgment in Coco v Clark. Thus, an obligation of confidence arises when:
1. the information in question is capable of being protected;
2. the defendant owes the claimant an obligation to keep the information confidential;
3. the defendant used the information in a way that breached that duty.
INTERNATIONAL INFLUENCES
The TRIPS Agreement requires members to afford protection to those who lawfully control
undisclosed information. Art.39 states that, in the course of providing protection against unfair
competition, members shall provide the possibility of preventing information lawfully within
their control from being disclosed to, acquired by, or used by other without their consent in a
manner contrary to honest commercial practice. This may influences the way case law is
interpreted, such as in relation to the obligation of third parties.
DOCTRINAL BASIS OF THE ACTION
Failure to identify whether breach of confidence has its roots in contract, tort, property or equity
is the reason why so many aspects of the action are unclear. Conceptual uncertainty is said to be
the reason why there is confusion about liability of third-party recipients, strangers, bona fide
purchasers of information, and the remedies which are available to a confider.
An alternative is to treat breach of confidence as a sui generis action, which would mean that the
action would not be dependent upon a particular jurisdictional basis (like in Canadian courts).
BREACH OF CONFIDENCE AND PRIVATE INFORMATION
There have long been calls for the introduction of a tort of privacy into British law. Although
breach of confidence performs many of the tasks covered by such a tort, there were still gaps in
protection of private information. These gaps were filled by the enactment of the ECHR into
domestic law through the Human Rights Act 1998, when the courts began to give effect to the
Art.8 right to respect for private and family life, home and correspondence. However, in the
recent case of Wainwright v Home Office, the HL rejected the invitation to declare that since at
the latest 1950 there was a high-level principle of invasion of privacy and preferred specific
legislative remedied rather than a general tort of privacy. This was confirmed in Campbell v
MGN where the HL stated there was no over-arching, all-embracing cause of action for invasion
of privacy.
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There are two recent changes that should be noted:
1. Courts have imposed obligation of confidentiality and non-disclosure on recipients of
private information where there is no relationship between the parties even where the
recipient has acquired the info from legitimate sources. Now the law imposes a duty of
confidentiality whenever a person receives information he knows or ought to know is
fairly and reasonably to be regarded as confidential. (Lord Nicholls in Campbell).
2. Courts have firmly embodied Arts. 8 and 10 at the heart of the action balance the
impact the disclosure will have on private life against the impact that non-disclosure
might have on the defendants freedom of expression.
The application of the breach of confidence action to private information has created a feeling of
discomfort amongst lawyers:
The label breach of confidence is misleading dates back to a time where the action was
based on improper use of info disclosed by one person to another in confidence; now, the
action applied where there is no disclosure or any relationship of trust or reliance;
Info about an individuals private life would not, in ordinary usage, be called
confidential more natural description would be private;
Better encapsulated as misuse of private information;
Should the right be treated as a separate action?
o Many common features with the general action of breach of confidence;
o Would mean modifying the language.
The Data Protection Act 1998 controls the way information about living identifiable persons is
use. Used as an alternative to breach of confidence where a persons image has been used without
their permission.
ELEMENTS OF THE ACTI ON
However confused the details of the law relating to breach of confidence may be, its basic
traditional framework is now well established. According to Coco v Clark, the claimant must
show that:
1. the information in question is capable of being protected;
2. the defendant owes the claimant an obligation to keep the information confidential;
3. the defendant used the information in a way that breached that duty.
IS THE INFORMATION CAPABLE OF BEING PROTECTED?
The first factor that must be shown in a breach of confidence action is that the information is
capable of being protected. Before being in a position to do this, it is necessary to identify the
information in issue. This is not an inquiry into the quality of the information per se, so mush as
a preliminary examination as to whether the information has been identified in such a way that
the action can proceed (similar to the question of what is a work in copyright law).

The claimant must identify the information in sufficient detail; otherwise their action may be
struck out on the basis that it is speculative and an abuse of process. In Suhner v Transradio, the
claimant gave the defendant 246 drawings saying that about 100 documents contained
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confidential drawings and that part of the information in the rest of the drawings was
confidential. The court refused to grant an injunction because it was very difficult to know exactly
which information was confidential. This was confirmed in Ocular Sciences, where Laddie J
emphasised that the claimant should give full and proper particulars of all confidential
information that he intended to rely upon as an absence of such particulars would affect the
defendants ability to defend themselves. In such cases, the purpose of the litigation could be
inferred as harassment and the action could be struck out as an abuse of process.
No restrictions are placed on the subject matter protected by breach of confidence, with the
exception of trivial or immoral information. Information is protected irrespective of the format
in which it appears and does not need to be fixed or in a permanent form. However, there are
four limitation placed on the type of information that may be protection under the action: where
the information is trivial, immoral, vague, or in the public domain.
TRIVIAL INFORMATION
In Coco v Clark, Megarry J expressed his doubts on whether equity would intervene unless the
circumstances are of sufficient gravity; equity ought not to be invoked to protect trivial tittle-
tattle, however confidential. The court has suggested that, in the context of trade secret, an idea
must be economically valuable or commercially attractive.
This exception has had little practical impact since the courts have been reluctant to label
information as trivial. The line between what is trivial or not is in most case very difficult to
determine:
Mills v MGN court held the address of Heather Mills was protectable despite the relatively
trivial character of the information;
McKennit v Ash action brought by Canadian folk singer Loreena McKennit to prevent
publication of a tell-all book published by an ex-friend, that included personal and private
details; court admitted some info in the book like details about a shopping trip to Italy does not
necessarily qualify for protection;
Douglas v Hello Lord Walker (dissenting) seems almost to have been prepared to dismiss the
action on the ground that the info which the Hello! photographs revealed about the wedding are
trivial. The majority did not agree, although Baroness Hale emphasised the importance of
triviality in restricting the scope of breach of confidence.
IMMORAL INFORMATION
The courts will not enforce obligations of confidentiality relating to matters that are grossly
immoral (following from decision in copyright law). However, this exclusion has also had little
impact since the courts have been reluctant to apply it in the absence of a generally accepted code
of morality.
INFORMATION THAT IS VAGUE
The law will not protect info that is vague or general. An aspiration or a desirable goal, the flavour
of which can be captured in the phrase wouldnt it be great if would not be protected by the
action. Such info is in the public domain, free to be used by all. Vagueness and simplicity are not
the same thing (Cranleigh Precision Engineering v Bryant).

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De Maudsley v Palumbo the claimant argued that the defendant, who ran the dance club called
Ministry of Sound, had appropriated his ideas for a new type of dance club the claimant had told
him about at a dinner party:
1. Legally open all night;
2. Very large and fitted out in hi-tech industrial warehouse style;
3. Incorporate separate areas for drinking, dancing, and socialising;
4. Have an enclosed dance area where sound quality would be high;
5. Employ top-quality disc jockeys.
Held: all five features were individually too vague and thus not protectable. Also, with the
exception of legally being open all night, the ideas were not novel.
Secton v Delawood claimant involved in developing methods of separating oil and water
brought an action to prevent the defendants who were former employees from working in the
same field; held: rejected; a bare goal, purpose, or possibility, a mere speculative idea, is not
capable of being protected as a trade secret.
Unlike other areas of IP such as copyright, breach of confidence provided protection over some of
the more abstract aspects of the creative process. The difficult question is determining where and
how the boundary is to be drawn between detailed information and very general ideas.
Talbot v General Television Corp a new concept for a TV series about real-life millionaires was
held to be protectable because it was capable of being realised in actuality (taken to mean that
the idea was capable of being transformed into a finished product in the relevant medium); the
claimant sent the defendant a more detailed outline, but this did not add much more substance to
the initial idea => the general proposal for a new type of programme involving real-life
millionaire is protectable in its own right.
Fraser v Thames TV idea for a TV series about the formation of a female rock group the
subsequent experiences of the members; to be capable of protection the idea must be sufficiently
developed so that it would be seen to be a concept that has some attractiveness for a television
programme and which is capable of being realised in actuality; specific enough to be protected.
The level of detail required varied on a case by case basis. One decisive factor is how the
information is treated in the industry in question. The fact that general proposals for new
programmes were treated as protected in film, theatre and television was an important factor in
deciding the info was in fact protected. In Talbot, it was suggested that the test for whether an
idea/concept is sufficiently developed to be protectable is to consider whether it is attractive.
However, as Knox J pointed out in Palumbo, this requirement is not very useful since if the
element of attractiveness is missing, then the idea/concept is hardly likely to be appropriated.
INFORMATION IN THE PUBLIC DOMAIN
Prima facie, information that is in the public domain is not capable of being treated as
confidential (Laddie J) => to be protected, the info must be relatively secret. It is possible for a
number of people to know about the secret and the info sill not to be in the public domain (cf.
patent law where a single disclosure is sufficient).
Prince Albert v Strange while Prince Albert had disclosed details of his engravings to friends
and relatives, this did not destroy the confidentiality that existed in that info;

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How widespread must the info be before it loses its secret status and falls into public domain?
Depends on a number of factors:
o Type of info; section of the public who have an interest in knowing about the info;
domain in which the info was published; degree of publication within that domain; the
form in which the info is published; the vigour with which the info is likely to be pursued
within that domain.
o Partial disclosure only deprives that part of the info disclosed of its confidentiality;
Douglas v Hello! did the info remain confidential after publication of the authorised
photographs by Ok! ? Lord Nicholls took the opinion that once the photos were published, there
was nothing left that was confidential. The majority took a broader view: the photographs were
separate pieces of information and the secret consists of every visual image of the wedding.
Disclosure of some photos did not deprive the other photos of their quality of confidence.
A personal secret will be treated as confidential info even if many people know about it.
Franchi v Franchi court considered whether info was still confidential after it had been
published in a patent specification in Belgium, but before it had been published in the UK. Held:
patent agents were in the habit of inspecting foreign specifications => info was in public domain.
now overruled by AG v. Guardian [1987] 1 WLR 1248: how new technology have changed the
concept of confidential.
The extent to which publication would harm the claimant the Spycatcher: defendant wrote a
book although he was under an obligation of confidentiality as a member of the Security Services.
Published in Australia, Ireland, and the USA; AG sought injunction to prevent the books
serialisation by The Times and The Guardian. Held: continued serialisation would not be a
breach of confidence because it would not cause further damage to the government.
THE SPRINGBOARD DOCTRINE
Aimed at preventing a person from using any special information obtained in confidence to gain
an advantage over others who would have obtained the information by other means person
breaching the duty of confidence will not be able to benefit from the breach. Promotes the
integrity of confidential relations by minimising any benefits that can be gained by a confidant
utilising such info; also promotes fair relations between competitors
Terrapin v Builders Supply Co claimant manufactured prefabricated portable buildings and
gave detailed technical info about them to the def; relationship broke down and def continued to
manufacture the buildings. Held: initial info gave the def a head start over a member of the
public; springboard doctrine => def were to be placed under a special disability to ensure they
did not get a head start over competitors.
BUT
o Restrictions on private info do not last forever: Potters Ballotini v Weston Baker Lord
Denning the springboard does not last forever; period of restriction is calculated by
reference to the time it would take to discover the info from legitimate public sources.
o Difficult to calculate duration of head start => courts prefer monetary rather than
injunctive relief.
Springboard doctrine also applies where confidential info was collated from public sources:
Roger Bullivant v Ellis def took copy of list of customers from his employer during the course
of his employment; held; injunction to prevent def from taking unfair advantage of the info, even
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though each of the names could have been acquired from public domain sources; CA later
discharged injunction saying it shouldnt extend beyond period of unfair advantage.
ENCRYPTED INFORMATION
Mars v Teknowledge - def broke the encryption system of the claimant and reverse-engineered
the Cashflow discriminator; held: encrypted info in the Cashflow machine did not have the
necessary quality of confidence.
PUBLIC INFORMATION THAT BECOMES SECRET
In patent law, once information is in the public domain it can never become secret. CF
In a breach of confidence action, the test is more flexible and the status of the info may change
over time:
Info that is in the public domain can become secret because the public forgets the info or because
the individuals that make up the relevant public change Schering Chemicals v Falkman: details
publicised between 1975-1978 that a drug called PRIMODOS, used in a pregnancy test, had
damaged unborn children. Schering, the company manufacturing the pregnancy test, successfully
obtained an injunction to prevent one of Falkmans employees (public relations firm hired to
train its staff in handling TV interviews) from giving out info about the drug.
DISCLOSURE BY THE CONFIDANT
Spycacther once info was in the public domain, the courts could not restrain further
publication. This does not mean the confidant is absolved of liability (the springboard doctrine
provides remedies against the confidant).
COMPILATION OF INFORMATION THAT IS IN THE PUBLIC DOMAIN
Info that builds upon info that is already in the public domain may be protected. Where someone
collects, arranges, or elaborate on elements already in the public domain, the resulting info is
capable of being protected (TRIPS, Art.39(2)).
J Megarry in Coco v Clark: something construed solely from materials in the public domain may
possess the necessary quality of confidentialitythere must be some produce of human brain
which suffices to confer a confidential nature upon the info. BUT
Not all acts of compilation will produce results capable of protection:
Ocular Sciences v Aspect Vision considered the status of compilations of info in the public
domain; claimant asserted that a booklet that contained a compendium of the detailed
dimensions of the claimants range of contact lenses was confidential (each lens had been put on
the market). Held: Saltman and Coco did not establish that the compilation of info in the public
domain is always enough to confer confidentiality. Need to be the product of the skills of the
human brain. Here, merely a non-selective list of publicly available info that should not be
treated as confidential as no relevant skill is employed.
o Difficult to know what type and level of labour is needed for the resulting info to be
capable of protection (similar to copyright protection for facts):
o It seems the threshold for protection is low: Talbot- TV programme about real-life
millionaires considered capable of protection while similar TV programmes had
previously been made; unique feature only that successful millionaire were to give the
recipe for success.
CONFIDENTIAL INFORMATION ABOUT PUBLIC INFORMATION
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Cranleigh Precision Engineering v Bryan def had been managing direction of the claimants
firm that manufactured swimming pools made according to a patent owned by the claimants
firm. During the course of his employment, the learned of another patent for similar swimming
pools and set up a rival business and purchased the patent. Held: claimant awarded injunction
against def using the info obtained during the course of his employment, preventing the def from
making use of the patent; rejected argument that info was in the public domain because it related
to a patent that was in the public domain.
Initially interpreted as supporting the proposition that confiders could not be released
from an obligation of confidentiality by their own acts BUT this was rejected in
subsequent cases;
Explaining the decision:
o Def was under fiduciary duty to have exploited the patent for the benefit of his
employer;
o While info was in the public domain, the impact of the patent (and its value)
depended upon the private info the def had acquired through his employment;
protected info about the consequences and importance of the patent to the def,
not the info per se.
NOVEL AND ORIGINAL INFORMATION
One of the key differences between breach of confidence and the statutory forms of intellectual
property relates to the qualitative restrictions places upon the intangible property that is
protected. Novelty and non-obviousness play a key role in limiting inventions that are patentable.
With the exception of info that is vague or in the public domain, there are few restrictions
imposed on into that is protectable. However, this has changed in recent cases:
Coulthard v Disco Mix- the HC held: info relating to techniques the def used for creating mega-
mixes was not confidential because the techniques were pretty obvious once one is setting out to
create a beat-mix.
De Maudsley v Palumbo- info should be original and novel (night club).
However, the language in the decisions is unclear and most of the comments were obiter. Only
relevant in relation to trade secrets and commercial info, superfluous in relation to personal info;
What purpose could imposing such requirements serve? The absence of any restrictions of
novelty could lead to extensive liability of breach of confidence.
PRIVATE INFORMATION
The courts have extended to action of breach of confidence to cover private info in order to give
effect to the obligation under Art.8 ECHR to provide a right to respect for a persons private life.
Test adopted in Campbell v Group Newspapers on whether info is protected is whether the
claimant has a reasonable expectation of privacy:
Even though the info might have otherwise been considered trivial Douglas v Hello: the
argument that info is trivial or anodyne carries much less weight in cases concerned with info
about an individuals private life which he/she expects to be kept confidential (Lord Walker)
Even if info is so widely disclosed it would not be regarded as confidential, it may still retain its
private character recognised by the HL in Campbell v MGN: enjoined further publication of
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photographs of Naomi Campbell leaving a meeting of Narcotics Anonymus and by the CA in
Douglas v Hello, preventing further publication of wedding photos.
Extent to which any photograph of a public figure in a public place comprises private
information such images are only private if they contain something embarrassing or offensive
CF. ECtHR in von Hannover seem to suggest all photos of a person are to be regarded as private
(other than a public figure performing public duties); German courts failed to prevent
publication of images of Princess Caroline of Monaco eating icecream; HL may have to revisit its
jurisprudence;
Considerations to determine when a person has a reasonable expectations of privacy Murray v
Express Newspapers( held JK Rowlings child had reasonable expectation of privacy even when
in public) and set out checklist of considerations:
The attributes of the claimant (child or adult)
The nature of the activity in which the claimant was engaged (public duties, recreation,
etc)
The place where the claimant was;
The nature and purpose of the intrusion;
Whether the observer was aware of the absence of consent from the claimant;
The effect on the claimant;
How the info came into the hands of the publisher.
OBLIGATION OF CONFIDENCE
The second element that must be proved in a breach of confidence action is that the def was
under a legal (as opposed merely to a moral) obligation of confidentiality. Traditionally, the
breach of confidence action only applies to those who receive info in confidence CF. rights
recognised by trademarks, copyright and patent that apply against anyone. However, a different
position now applies to private info. Focus on the nature of the relationship:
DIRECT RELATIONSHIP
Three situations where a duty of confidentiality may arise within the context of a direct
relationship:
CONTRACTUAL RELATIONSHIP
Obligation not to use or disclose info;
Express or implied; an express confidentiality agreement may be void e.g. in the case of software,
a click-wrap restriction prohibiting decompilation may be void (Software Directive allows
decompilation of computer programs and renders void contracts attempting to restrict such
rights)
Typical of employment contracts and know-how licensing e.g. relationship between banker and
customer;
INTRINSIC NATURE OF THE RELATIONSHIP
Fiduciary relationship an equitable relationship where one party has a duty to act for the
benefit of the other e.g. doctor-patient; priest-penitent; solicitor-client (no need for
confidentiality firm); bear in mind difference between fiduciary and confidence; unclear
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whether it applies to transient or commercial sexual relationships. Also, unclear how the law of
confidence and the law of fiduciaries inter-relate;
FROM THE MANNER OF COMMUNICATION
Reasonability test whether any reasonable man would have realised upon reasonable grounds
there was a relationship of confidence and the info was given to them in confidence? test of
circumstances (Coco v Clark) always depends on the facts of the case:
Expresses statement
Inferred existence of an obligation courts usually take into account circumstances of
disclosure and any other relevant circumstances; courts will take into account commonly
held views, usages, and practices of the industry or trade in question; the way the parties
understand their moral obligations (Fraser v Thames)
Normal conversation: De Maudsley v Palumbo where info is disclosed in an informal, social
setting, normally no obligation would arise;
Disclosures for a limited purpose normally gives rise to an obligation that the info will only be
used for that purpose the limited purpose test BUT see exceptions: where the info could be
protected by copyright, patent, or design protection and a reasonable recipient might not assume
that the info was given to them under an obligation of confidence (Carflow v Linwood)
Encrypted material - Mars v Teleknowledge encrypted material ; general rule that encrypted
material implies breach of confidence if recipient can decode it; overruled: need to apply
reasonability test anyway, regardless if encrypted or not; cannot automatically assume its
confidential.
Barrymore v News Group disclosure in a normal relationship;
Objective or subjective standard? While in general the courts have favoured the objective
standard of the reasonable person, in some cases the subjective expectations of the parties have
been taken into account:
Schering Chemicals v Falkman an obligation of confidence would be imposed in circumstances
where the info is regarded by the giver and recognised by the recipient as confidential. Cf. De
Maudsley v Palumbo;
Carflow Products v Linwood Securities whether the demonstration of a car-lock device took
place in circumstances of confidence; Jacob Js two possible approaches: either examine what the
parties thought they were doing (subjective) or focus on what a reasonable person would have
thought the parties were doing (objective fly-on-the-wall approach). Because equity looks at the
conscience of the individual, subjective views were held to be relevant in relation to the equitable
obligation of confidence. Approach still unclear as to when it should be considered;
THIRD PARTY RECIPIENTS
Parties outside an initial confider-confidant relationship one of the most difficult issues as to
where an obligation of confidentiality arises. Generally, a third party who lacks good faith is
bound by an equitable obligation of confidence principle derived from the equitable doctrine
that it is equitable fraud in a third party knowingly to assist in breach of trust, confidence or
contract by another. (Campbell v MGN) CF AG v Guardian Newspapers where court rejected
suggestion that such liability should be decided by analogy to traditional trust rules and that this
should be decided on by case by case basis.
Factual situations where a third-party was bound by obligation of confidentiality:
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Indirect recipient is aware by confidential nature of information Spycatcher: general rule of
law that a third party that comes across information which they know is confidential, then they
are bound by an obligation of confidence; no precise discussion of the levels of knowledge
required to give rise to such a duty, although it seems a duty should be imposed on any person
who was grossly negligent in failing to know that a breach of confidence was involved:
A-G v Guardian knowledge includes circumstances where confidant deliberately closed his eyes
to the obvious;
Thomas v Pearce- awareness or willingness to turn a blind eye.
Where a person receives info innocently, but subsequently discovers the info is confidential =>
duty of confidentiality; if info disclosed before, then no obligation: English and American v
Herbert Smith papers for counsel acting for the claimants in action pending in the Commercial
Court were mistakenly sent to the solicitors for the other side, Herbert Smith; solicitors realised
the mistake but instructed by the clients to inspect the papers; claimant sought interim
injunction preventing the solicitors form using info derived from the privileged docs; held:
injunction granted as later use of the info was unconscionable.
when the recipient is careless with confidential information => no obligation;
person too nave to realise the info was confidential => no obligation; when a person is
too stupid to realise the info was confidential => no obligation;
Injunction but no damages against bona fide purchasers: Valeo Vision SA v Flexible Lamps:
Valeo designed and manufactured lights for cars and disclosed details of the design to M, who in
turn revealed the details to the def who produced similar lights; Valeo sued the def for breach of
confidence. Held: person not aware of confidential info regarding the business; courts granted
injunction but no damages; basic criteria: where party just comes across info and it is not clear
that it is confidential, the court will only grant an injunction for the info not to be passed on;
Aldous J distinguished between duty of confidentiality that gives rise to injunctive relief and one
that would result in an award of damages: in order to get damages, the conscience of the def had
to be affected
third-party recipient aware of the confidential nature of the information that received it
from a person not bound by an obligation of confidence (received little attention):
possible that a third party recipient could be bound by an obligation of confidence even
where the other party not bound by such an obligation;
Prince Albert v Strange - a third party who proposed to publish catalogues of Prince Alberts
etchings was under an obligation of confidence even though evidence was available as to how he
came by the material; court assumed the info had been communicated by a wrongdoer.
STRANGERS
Qualified third-party recipients; until recently, the law on this was unclear. The recent decision in
Douglas v Hello clarified the matter to a large extent. Prior to this, two competing views as to
when a stranger receiving info was to be treated as under a duty of confidence:
1. focus on the conduct of the def in acquiring the info whether the def had acted illegally;
2. focus on whether the stranger knew the info was confidential; approach based on
knowledge and conscionability adopted in Douglas v Hello.
THE WAY THE INFO WAS OBTAINED
If strangers had acted illegally => obligation of confidentiality:
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Malone v Commissioner of Metropolitan Police police tapped telephone line and consequently
prosecuted claimant for handling stolen goods; claimant sued police for breach of confidence;
held: police did not come under duty of confidentiality; deliberate tapping was an inherent risk of
communicating confidential info over the phone; CF
Francome v Mirror Group Newspapers private investigator into breaches of Jockey Club rules
illegally tapped phone conversation of a jockey; held: Malone distinguished as this was
unauthorised tapping; injunction awarded;
Spycatcher- key factor was not the illegal conduct of the def.; the court was only trying to
establish whether the readers knew the info was confidential; if yes, then bound by obligation of
confidence; completely subjective test;
KNOWLEDGE OF THE STRANGER
According to Lord Goff, the key factor is whether the stranger knows that the info is private or
confidential whether anything reasonably lead the observer to realise that what he/she
observes is confidential:
Shelley Films- filming version of Frankenstein; photographer found his way onto the set;
question whether photographer evaded security guards and took pictures; signs Absolutely No
Photography All Films will be confiscated and No Admittance Access to Authorised Persons
only. Held: film was starring Robert de Niro and producer wanted to keep it a secret until the
trailer came out; the pictures ruined the surprise and this was held to amount to a legitimate
interest of confidentiality; had the photographer used the picture after the film was released,
there wouldnt have been a relationship of confidentiality. Shift of focus from the illegality of the
means through which info was obtained to whether the def had knowledge of the confidential
nature of the info. Approach adopted in:
Douglas v Hello court held based on the circumstances of the case that there was an obligation
of confidence because the rights had already been sold to OK! Magazine; the illegal conduct of the
def. wasnt of factor. Conduct is irrelevant; what is relevant is knowledge that info was
confidential.
To whom is the obligation owed?
The benefit of an obligation of confidence is not assignable. However, in Douglas v Hello the HL
held the obligations were owed to OK! as they had paid 1mil for the benefit of the obligation of
confidence imposed upon all present at the wedding in respect of any photos. This implies that
any licensee of confidential info can bring an action against someone who uses that info in
breach of confidence (if that person was aware of the licence). This would place a licensee of
confidential info in a stronger legal position than licensees of other IP rights.
EMPLOYEES
Different obligations on current employees and former employees: more concerned with implied
duties because of the nature of the job.
CURRENT EMPLOYEES
General duty: express duties under contract law; express provisions dealing with the nature and
scope of the duty of confidence owed by the employee to the employer. Any express terms
imposing a duty of confidentiality upon the employee are subject to the general rules of contract.
Implied duties: obligation of fidelity to employers (Thomas Marshall v Guinle) -> prevents
employees from disclosing info and from competing with their employers.
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AG v Blake according to the CA:
employee must act in good faith;
employee must not make profit from trust of employer;
employee must not place themselves in a position where conflicts of interests may arise;
can act to self-interest BUT must inform employer and get employers consent in order to
avoid breach of confidence.
Crowson Fabrics v Rider - onerous obligations on more senior employees because of the
fiduciary duty they owe to their employer;
FORMER EMPLOYEES
Need to find balance between the interest of the former employer in controlling the use that an
employee is able to make of info acquired during the course of their employment and the fact that
it would be unfair to prohibit an employee from working the same area again.
EXPRESS OBLIGATIONS:
Generally a restrictive covenant preventing the employee from working in the same industry for a
specified period of time after leaving employment; important that employees should be free to
use personal skills, knowledge and abilities gained in the course of their employment; the
doctrine of restraint of trade balance these competing interests; only enforceable if
appropriately limited in time, geographical coverage and scope of activities;
Garden leave to keep employees as an employee without employing him -> paying the
employee not to work; the most effective mechanism to prevent an employee from entering into
similar employment; formally still an employee; Roster v Manchester City (football players paid
not to play for another team; but still under contract).
Mont v Mills- employer paid employee 1-years wages in exchange for obligation not to join
another company in the tissue industry for one year; he agreed, but shortly after termination he
became joint managing director of a competitor; claimant sought injunction; CA held: restrictive
covenant unjustifiable restraint of trade; undertaking not limited to geographical area or nature
of activities; court cannot construe the clause; public policy to promote competition and proper
use of an employees skills.
IMPLIED OBLIGATIONS
In the absence of an express duty of confidence in the contract of employment, the courts may
imply certain limited obligations on the use that ex-employees can make of info acquired during
the course of their employment. In a normal business context, the obligations imposed are
primarily limited to the use that can be made of trade secrets.
No need for express specification in the contract: Fascenda Chicken v Fowler (classic authority
position of ex-employees): while working as sales manager, F implemented a system for
recording info on sales; this was property of the employer; before leaving the job, he memorised
everything on the system in order to use it later; he later set up his own business; there was no
agreement or obligation not to work in the same business; the application for injunction was
refused; held: F did not memorise the info in bad faith; he developed the system himself; an ex-
employees obligations were confined to trade secrets e.g. chemical formulae, secret
manufacturing processes, designs and special methods of construction.
Faccenda Test- can use secrets to make themselves more employable, but cannot memorise
trade secrets in order to use them afterwards -> breach of confidence; four factors should be
considered:
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1. Nature of employment how near the employee is to inner counsel of the employer since
info only made available to trusted employees is more likely to constitute a trade secret;
2. Nature of info confidential or natural info employees come across in the course of their
job? The info must be defined with some degree of precision;
protection not available to general business methods and practices (Lancashire Fire v SA
Lyons);
just because info is technical, it does not mean is relates to trade secrets if employee is
expert or specialist, their general skill and knowledge might be extended (Ocular
Sciences)
3. Did the employer impress on the employee the confidentiality of the information? If info was
specifically designed by the employer as a trade secret, then more likely to be treated as such.
However, depends on size of the business (Lancashire Fire) in case of small businesses,
the courts may treat info as trade secret even though the employer did not identify it as such.
4. Can the info be isolated from other information which the employee is free to disclose
and/or use? May be difficult to establish when a trade secret is part of bulk of info that can
be disclosed e.g. patents. No general rule: based on the circumstances of the case; judges
tend to protect employees more than employers.
Undecided issue: Whether the obligations implied into an employment contract for the post-
employment period change when an ex-employee intends to disclose rather than use the info.
Policy considerations that restrict implied, post-employment obligations to trade secret
disclosure aim to promote mobility of labour and socially productive use of skills =>
courts will be less generous to an ex-employee who sells info or exposes it gratuitously
(Faccenda Chicken)
STATUTORY OBLIGATIONS AND PUBLIC BODIES
Obligations of confidentiality can be imposed by statute:
Consumer Credit Act 1974
Building Societies Act 1986
Competition Act 1988
Marcel v Commissioner of Police of the Metropolis - police disclosed info obtained during
criminal investigation concerning a property development to a third party who was bringing a
civil action against M; held: public officers were under a duty of confidentiality which prevents
them from using the info for other purposes without the consent of the confider.
The employees of public bodies are not bound by obligation of confidence; an action for breach
will be brought against public body and it is up to them to bring action against employee.

THE DEFENDANT USED THE INFO IN A WAY THAT BREACHED THAT DUTY
The third and final factor that must be shown to establish breach of confidence is that the
obligation has been breached.
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THE SCOPE OF THE OBLIGATION
In order to determine whether the duty of confidence has been breached, it is first necessary to
determine the scope of the obligation. While the scope of the obligation restricts use and
disclosure, it does not apply to the acquisition of info. This may mean that British law fails to
comply with Art.39 TRIPS which speaks of the disclosure, acquisition, or use of info.
While the scope of the action potentially extends to any use or disclosure of info, the scope of the
obligations that are actually imposed upon an individual always depends on the facts of the
case.
Where the obligation arises as a result of an express term in a contract or an express obligation
in equity => the scope of the obligation depends on the way the relevant provisions are
interpreted.
Where the obligation is implied into contract or imposed by equity => more difficult; the scope
of the obligation would depend on the views of the reasonable person in the circumstances.
Where the scope of the obligation arises via the limited purpose test => if the info is used for
any purpose other than the limited one for which the info was imparted there may be a breach.
Sometimes it is clear from the circumstances the confidant actually knew the info being
disclosed to them was only to be used for a restricted purpose;
The scope of the obligation is determined by the objective standard of what the
confidant ought to have known: Smith Klein&French v Department of Community Health
the scope of the obligation was not to be determined by the subjective views of the
confider; instead, it was to be determined by the objective standard of what the
confidant knew or ought reasonably to have known in the circumstances. Factors to be
taken into account when determining the scope of the obligation:
o Whether the info was supplied gratuitously or for a consideration;
o Whether there were any past practices that gave rise to an understanding that
the use was limited;
o How sensitive the info was;
o Whether the confider had any interest in the purpose for which the info was to
be used;
o Whether the confider expressly warned the confidant against a particular
disclosure or use of the info.
Source Informatics - considered the way in which the scope of the obligation should be
determined; Source collected info about doctors prescribing habits and patterns, which it then
sold to pharmaceutical companies so that they would market their products more effectively. In
return, pharmacists collated relevant info from the prescription forms completed by doctors
and forwarded it to Source. The info did not include patients names. While the reasonable
person test was useful in determining whether there is a duty of confidence, it does not give
guidance as to the scope of the obligation of confidentiality. The appropriate test is an objective
one, similar to the one put forward in Smith Kline&French: would a reasonable pharmacists
conscience be troubled by the proposed use to be made of patients prescriptions? Instead of
focusing on what the reasonable pharmacist knew or ought to have known, the court focused on
the type of info and the concern of the law to protect the confiders personal privacy when it
comes to personal info. Therefore, the scope of the obligation was limited to uses that would
affect the confiders personal privacy. On the facts, held: as the info had been used anonymously,
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the patients privacy was safeguarded => no breach of confidence. Relied more on the a priori
language of rights rather than on the standard of the reasonable pharmacist;
Where a number of people jointly generate info and one party later wants to develop it, but the
others do not => depends on the nature of the relationship between the parties:
Murray v Yorkshire Fund Managers group of businessmen developed plan to take over ailing
business; held: when the claimant was excluded from the relationship, he lost his ability to
control how the info was used. Solution reached based on the expectations of the parties.
HAS THE OBLIGATION BEEN BREACHED?
Once the scope of the obligation has been ascertained, it is then possible to consider whether
the obligation has been breached. This is primarily a factual question. Three issues are
important:
1. Derivation the info used by the def must have been derived from the confiders info and not
from some other source; no breach if info independently generated; CMI-Centers v
Phytopharm - three ways of proving a def has used the confidential info (Laddie J):
Show direct evidence e.g. from an employee of the def who had seen the info being
copied and then used;
Indirectly e.g. if protected info contained a significant fingerprint and the defs use
bore the same fingerprint (dimensions, design, composition, etc.)
A claimant may be able to persuade the court the def could not have got to the
position they have with the speed he has had he simply started from legitimate
sources and worked everything out for himself.
2. The defendants state of mind not relevant when determining breach, although mens rea is
often a component when establishing the defs obligation; no need to show breach was
conscious or deliberate; it does not matter if the def acted in good faith, did not know the info
was confidential, or used the info accidentally (Weld-Blundell v Stephens) or subconsciously
(Talbot v GTV).
3. Breach and damage it remains unclear whether, for disclosure to be actionable, claimants
must show they were harmed by the disclosure;
in the case of government secrets, it seems that some sort of harm must be proved:
Attorney General v Guardian (No2) injunction refused on the grounds that it was necessary
for the government to prove damage from the continued publication of Spycatcher and it
could prove none.
Personal secrets no need to prove damage: McKennit v Ash- no need to show
detriment beyond the fact there had been an invasion of the claimants private life.
Commercial info detriment not an essential constituent of a claim for breach of
confidence; if it is required, then the diversion of business opportunities could
amount to a detriment to the person imparting confidential info (Federal Bank of the
Middle East v Hadkinson)
Has the confidential info been misused? Some unclear areas:
Where the info used or disclosed is different the info can appear in another form and
still breach e.g. a change of language or a product built to a plan may be actionable; how
different can it be and there still be a breach? Depends on the nature of the info:
o info personal in nature requires a low level of similarity; what matters is the
substance of the message;
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o trade secrets in order to avoid hampering competition, high similarity
necessary for breach to occur;
partial use no caselaw; depends on circumstance of the case; Source Informatics : a
confidant will be liable for breach is he misuses part of the confidential info provided the
misuse relates to a material part of the info;
De Maudsley v Palumbo- considered whether partial use could constitute a breach; def
had only adopted two of the five features of the claimants idea for a nightclub; held:
partial use not sufficient to constitutes unauthorised use for the purposes of breach of
confidence; def had added a number of important features, such as the idea the club
would not sell alcohol and that admission would be limited to those over 21.
Alteration of confidential info a question of fact (Ocular Sciences): the extent and
importance of the use of confidential info;
Prince Albert v Strange info about etchings was replicated when it appeared in a
catalogue containing descriptions of those etchings;
Non-action yet to be considered by the courts whether non-action amounts to a use;
would it be a breach of confidence if on the strength of confidential info a person
decided not to act in a particular way? It would be necessary to demonstrate the def had
previously set upon a particular course of conduct from which they subsequently
withdrew when they found out the confidential info.
DEFENCES
Once it is established that a defendant has breached their obligation of confidentiality, the only
way they can escape liability is if they can show that they fall within one of the defences which
are available to them. These include consent or authorisation to use the info, disclosure in the
public interest, as well as a number of other equitable and statutory immunities.
CONSENT OR AUTHORISATION
If a defendant is able to show that the claimant consented to or authorised the use of the info,
they will be exempt from breach. Consent can arise through:
Express licence contractual (e.g. technology-licencing agreements) or gratuitous
(doctor releasing medical info with the patients consent)
Implied from the circumstances; special considerations apply in relation to consent
given in relation to medical info;
PUBLIC INTEREST
Provides def to escape liability for breach if they can establish that disclosure is justified in the
public interest; the origin of the defence lies in dicta of Wood V-C in 1856 decision Gartside v
Outram the iniquity rule;
Initial Services v Putterill def worked as sales manager for claimants firm of launderers; he
resigned and revealed documents to the Daily Mail exposing the claimants price fixing; held: the
iniquity rule extended to cover improper trade practices and not limited to crime or fraud;
Criticised by Gummow J in the Federal Court of Australia on the basis that it is picturesque but
somewhat imprecise argued Gartside v Outram did not establish a defence, but it was more a
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case where the courts withheld equitable relied on the grounds on unclean hands. Gummow J
further criticised the defence in Smith Kline & French v Department of Community Health, as not
so much a rule of law as an invitation to judicial idiosyncrasy. He asserted that equitable
principles are best developed by reference to what conscionable behaviour demands of the def.
WHAT IS THE PUBLIC INTEREST?
While it is impossible to delimit the circumstances in which a particular disclosure will be in the
public interest, a number of different factors are taken into account when deciding whether the
disclosure is in the public interest (reflected in the provisions of the Public Interest Disclosure
Act 1998 and Press Complaints Code of Practice)
The nature of the info if disclosure relates to misdeeds of a serious nature and importance to
the country, then likely to be justified as being in the public interest Beloff v Pressdram BUT
iniquity does not always justify disclosure (Bunn v BBC)
Disclosure relating to a criminal offence, civil actions, failure to comply with a legal
obligation, a miscarriage of justice, behaviour likely to endanger health and safety, or
damage the environment;
Does not permit unauthorised disclosure of info that is merely interesting to the public
(Lion Laboratories v Evans) distinction between matters which affect moral, political,
medical, or material welfare of the public and the publics entertainment, curiosity, or
amusement BUT see:
Campbell v MGN courts willing to permit disclosure of confidential info in the public interest
where it serves to correct a false image that a person has crated about themselves; HL stated
that where a public figure makes untrue statements as to their private life, the press will
normally be entitled to put the record straight;
Woodward v Hutchins CA held disclosure by a former press agent of the private activities of a
groups of pop stars was justifiable where they had falsely represented to the public that they
were clean-living; if the image which a public figure fostered was not a true image, it is in the
public interest that it should be corrected (Lord Denning); followed in:
Theakston v MGN presented of Top of the Pops T sought injunction to prevent publication of
the fact that he had sex with a number of prostitutes in a brothel in London; CA refused, noting
that T had courted publicity and willingly placed info in the public domain about his sexual and
personal relations in order to enhance his fame and popularity;

The consequences of non-disclosure. Disclosure may be justified as being in the public interest
even though it does not reveal wrongful be behaviour or misconduct e.g. where disclosure will
protect public health or safety.
Lion Laboratories legitimate for the press to disclose confidential internal papers that
suggested an alcohol-measuring machine was faulty; if the info had remained concealed, the life
and liberty of an unascertainable number of persons might have been affected;
The type of obligation. It seems that the courts will treat some obligations as more absolute
than others.
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X Health Authority v Y- disclosure by a priest or doctor can rarely be justified in the public
interest; BUT see:
W v Edgell disclosure of mental health patients interests in firearms and explosives by
alerting the Home Office was justified as it was directly relevant to public safety;
Campbell v Frisbee more weight given to obligations that arise through contractual agreement
than through other means;
The beliefs of the confidant. The court is not confined to considering whether info is in fact real
misconduct. It can also take into account whether the confidant reasonably believed the
revelation was required in the public interest (Fraser v Evans) broader just cause
characterisation of the defence => disclosure may be justified where the confidant reasonably
believed they were disclosing iniquity, even if it turns out they were wrong (Woolgar v Chief
Constable of Sussex Police).
Malone v Metropolitan Police Commissioner police owed duty of confidentiality, nevertheless
there was reasonable suspicion of iniquity such as to justify disclosure;
The party to whom the info was disclosed. While disclosure is likely to be justified if it is made
to a responsible body (Imutran v Uncaged Campaigns) rather than if it is disclosed to the general
public via a newspaper.
Lion Laboratories CA emphasised newspapers must take special care not to confuse public
interest with their own interest in increasing circulation.
Initial Services if confidence relates to a crime, for disclosure to be justified it should normally
be made to the police;
Francome v MGN interim injunction granted to prevent disclosure in a newspaper of evidence
showing F had breached Jockey Club regulations and possibly committed criminal offences;
disclosure to the Jockey Club would have sufficed; no need for full newspaper disclosure; BUT in
some cases, publication might be justified:
Cork v McVicar disclosure to the press might be in the public interest where info disclosed
concerned police corruption and therefore disclosure to the police might not suffice;
Public and private interests. The idea that the public interest defence might involve the
balancing of public interest against a private interest was rejected in W v Edgell where the
relevant private interest was that of the confider. It still remains to be seen if the courts might
accept a defence of disclosure in the private interests of the person to whom the disclosure was
made (e.g. disclosure by a doctor who know his patient has a contagious sexual disease to a
person in a sexual relationship with his patient)
Whether disclosure can be justified by reference to the confiders own interests e.g. doctor
revealing info about treatment of a child to the childs parents.
Gillick HL held doctors not under duty to inform parents about advice they had given to their
children in relation to contraception, but did not specify whether doctors would be in breach if
they did so.
FREEDOM OF EXPRESSION
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One of the factors the courts take into account when deciding whether to grant relief for breach
of confidence is the right to freedom of expression provided for in art.10 ECHR. This operates
independently of the public interest defence and has to be balanced against other interests.
MISCELLANEOUS IMMUNITIES
A defendant may be immune from a breach of confidence action where they have revealed info
pursuant to a statutory obligation of a court order (e.g. Criminal Justice Act 1988, s.98 where a
person discloses to a police constable a belief that property is the proceeds of a crime).
Another way in which a def might be able to escape liability is via the equitable principle that,
for a claimant to bring an action in equity, they must have clean hands:
Lennon v News Group John Lennon refused claim for injunction against his former wife Cynthia
preventing her from publishing details about their married life because Lennons chauffeur and
Lennon himself had already written newspaper articles discussing their most intimate affairs.
PRIVATE INFORMATION
The decision as to whether private info has been violated involves two steps:
What is the scope of the right to private life?
If the interference with that right justified?
What is the scope of the right to private life?
Is the info private in the sense that it is in principle protected by Art.8
The touchstone of private life is whether in respect of the disclosed facts the person in
question had a reasonable expectation of privacy; the question is what a reasonable
person would feel if placed in the same position as the claimant and faced with the same
publicity (Campbell).

Potential problems:
How the law should deal with private info that is commercialised e.g. in the case of
celebrities and public figures Douglas v Hello the CA held there was no reason why
equity should not protect the opportunity to profit from confidential info about oneself
in the same circumstance that it protect the opportunity to profit from confidential info
in the nature of a trade secret; the fact that the info is commodified does not affect its
ability to be protected as private info;
The scope of protection that ought to be given to public figures in public places how
much control should a public figure have over images taken of them in public places?
Is the interference justifiable?
Once the info is identified as private, the court must then balance the claimants interest in
keeping the info private against the countervailing interest of the recipient in publishing it
(Campbell). In all circumstances, must the interest of the owner of the private info yield to the
right of freedom of expression conferred on the published by Art.10?
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Art.8 operates so as to extend the areas in which an action for breach of confidence can
provide protection for privacy; generous approach in which privacy is to be protected;
Cf.
Art.10 opposite direction;; protects freedom of expression by restricting the area in
which remedies are available for breach of confidence.
Balancing exercise restrictions on Art.10 must be rational, fair and not arbitrary, and
they must impair the right no more than necessary (Campbell)
Involves a factual inquiry:
Operates a s a vehicle for policy-type issues clear that the pendulum has swung in
favour of private info and away from protection of freedom of press (after Cambpell and
van Hannover);
Difficult to provide guidance as to how and where the line will be drawn, but some
factors influence the balancing exercise:

o putting the record straight should the celebrity be able to prevent disclosure of
personal info that undermines the public image of themselves that they have cultivated?
Campbell v MGN key issue of whether the law is protecting the private sphere or whether
non-disclosure is sought to protect a valuable brand; HL held Campbells public lies that she
did not use drugs precluded her from preventing the press from disclosing this was untrue; this
however, does not mean a public person has a reduced expectation of privacy in relation to
other info about their private life (McKennit v Ash)

o Impact on the claimant the question in Campbell was whether the disclosure of additional
info could be protected by art.8; held: while the press was entitled to put the record straight
about Campbells comments on her lack of drug use, info about her treatment was equivalent
to the disclosure of treatment of a medical condition; the disclosure might undermine and
disrupt Campbells treatment; recovering addicts are particularly vulnerable;
Peck v UK the ECtHR held widespread publication of photos which revealed a person in a
situation of humiliation or severe embarrassment was an infringement of Art.8;

o Nature of the info the more intimate the aspect of private life which are interfered
with, the more serious must be the reasons for doing so; suggestion that political expression is
to be treated differently to private info;
Maccaba v Lichtenstein morally questionable info may not receive the same level of protection;
letters containing unsolicited expressions of love from a married man to a married woman no
reasonable expectation of privacy;

o Degree of disclosure - the extent of the disclosure may weigh in favour of a claimant
attempting to protect private information; Peck v UK an embarrassing moment involving P
which was filmed on CCTV and repeatedly broadcast on TV was an invasion of Ps right to
privacy; the artificiality of the disclosure (must greater that could ordinarily be expected in a
public place) combined with the embarrassing content => violated Ps right to privacy;

o Nature of the relationship shared personal info generated by intimate relationship; the
more stable the relationship, the greater the significance attached to it (A v B); one-night
stands or visits to prostitutes represent the outer limit of what is confidential (Theakston);
higher standard expected of headmasters, clergy, politicians, senior civil servants, surgeons
and journalists (McKennit v Ash) or where a person acts as a sole model in some way or
another.
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o Matters of public interest the purpose of the disclosure; von Hannover - ECtHR emphasised
the decisive factor in balancing Art.8 against Art.10 rights was the contribution that
published photos and articles make to a debate of general interest; similar principle adopted
in Green Corns v Claverly Group granted injunction to prevent local newspaper from
disclosing the addresses of care homes for troubled children; such an injunction would not
prevent debate; no public interest in publication of addresses;

o The obligation may change over time Editions Plon v France: an injunction to prevent
publication of an account by President Mitterrands doctor of his relationship with
Mitterrand was held not to be in violation of Art.10 when Mitterrand was alive, but this
changed after Mitterrands death;

o Scope of protection for public figures in public places difficult area; landmark decision von
Hannover where ECtHR disagreed with the German Federal Constitutional Court decision
that as a leading figure in contemporary society, Princess Caroline of Monaco had to tolerate
the publication of photos of herself in a public place, even if they showed her in scenes of
daily life, rather than in official duties; the ECtHR distinguished between celebrities and
people engaged in official public business; the decisive factor lies in the contribution the
published photos make to a debate of general interest; new communication technologies
have increased the need for the courts to be extra vigilant in protecting private life;
Murray v Express Newspapers - action to prevent publication of photos of J.K. Rowling and
her husband pushing their son in a pram down a public street in Edinburgh; the photo
showed the infants face in profile; What degree of protection which someone who is well
known and of public interest is entitled to in respect of their private life?
Disparities between degree of protection in the UK following Campbell (generally
limited to personal or embarrassing info) and the wider view of the ECtHR of what
constitutes private life under Art.8;
An individual whose life is of public interest may have an expectation of privacy in
relation to private family and personal activities which are not in themselves either
embarrassing or intimate in a sexual or medical sense; disclosure of info could not be
justified as a legitimate exercise of the right to freedom of expression where the sole
purpose of the publication is to satisfy readers curiosity, rather than contribute to a
debate of general public interest;
Considered John v Associated Newspapers - refused injunction against publication of
photo of Elton John wearing a tracksuit and baseball cap; Elton John could not have
had a reasonable expectation of privacy in this case; no element of harassment like in
von Hannover;
Distinguished approach in John v Associated Newspapers and followed the CA in
McKennit v Ash that acknowledged that von Hannover extended Art.8 beyond what
had previously been understood; nevertheless, the CA was bound to follow the HL in
Campbell (arguably conflicting with van Hannover) and held there was no reasonable
expectation of privacy and rejected Murrays application to prevent publication of the
photo of her family walking in the street; there was nothing untoward of undignified
about the photos;

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REMEDIES
The primary remedy that a claimant is likely to pursue in a breach of confidence action is an
interim injunction to restrain use or disclosure of the information. In A v B the CA has put
forwards a series of guidelines for dealing with interim applications in privacy cases, balancing
of the facts, rather than a technical approach to the law.
INTERIM RELIEF RESTRAINING PUBLICATION
In other areas of IP law, the test for whether an injunction should be granted is that outlined in
American Cyanamid; this test is too broad for breach of confidence cases as it would almost
always result in injunctive relief because the balance of convenience almost always favours
restraint in order to ensure the info concerned retains its confidential quality until trial. This
raises questions about freedom of expression and the courts have been reluctant to use the
American Cyanamid test in privacy cases, preferring to pay greater attention to the merits of the
parties claims.
S.12(3) HRA 1998 no relief should be granted which will restrain publication prior to trial
unless the court is satisfied that the applicant is likely to establish that publication should not
be allowed.; courts also instructed to take into account:
The extent to which the material has or is about to become available to the public;
Whether it is or would be in the public interest for the material to be published;
Any relevant privacy code.
INTERIM RELIEF RESTRAINING USE
Different considerations operate where the claimant seeks interim relief restraining use.
Prevents wrongdoers from benefiting from their wrongful acts or from continuing to inflict
damage on the claimant; to restrain manufacture, sale, and competition;
Reluctance to apply the American Cyanamid test in restraint of trade because it might interfere
with a persons right to trade; in the absence of a speedy trial, matters are likely to be resolved
by interim relief.
PERMANENT INJUNCTIONS
If a claimant succeeds in establishing a breach of confidence at trial, they are prima face entitled
to injunctive relief (Ocular Sciences). Nevertheless, claimants are not entitled as of right to an
injunction and the courts retain discretion as to whether to grant one.
Ocular Sciences a permanent injunction will be refused if it is oppressive or out of all
proportion to the value of the info used;
Peter Pan v Corsets Silhouette - court is adjunct to an injunction and may require the def to
deliver up material containing confidential info for destruction.

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DAMAGES
Confusion surrounding the juridical nature of the obligation has given rise to specific problems
in relation to financial remedies for breach of confidence.
Contractual obligation of confidentiality => the promise will usually be entitled to
damages for breach of contract under normal contractual principles;
Equitable duty of confidentiality unclear; only common law courts can award
damages; if a claimant desires a financial remedy in a Court of Equity, it should be in the
form of an account of profits; however, the courts have awarded damages even though
the obligation was equitable (Seager v Copydex)
The measure of damages should be tortious Seager v Copydex: damages were to be assessed by
reference to the market value of info; two ways of calculating the amount of damages:
1. If the information could have obtained by employing a competent consultant, the amount of
damages equals the fee that consultant would charge;
2. If the information is something special involving an inventive step, the amount of damages is
the price a willing buyer would pay for it.
Other ways of assessing damages Talbot v GTV: by way of fair remuneration for a licence, loss
of profit the claimant would have gained, or depreciation in the value of the right to have the
info kept confidential;
Suggestion that courts are able to take into account distress and injury to feelings (Campbell),
and might award exemplary damages, although so far there is no authority supporting this.
ACCOUNT OF PROFITS
In general, a claimant relying on an equitable duty of confidence is entitled to an account of
profits for the wrongful use or disclosure of confidential info; also available where the
obligation of confidence is contractual (AG v Blake).
CONSTRUCTIVE TRUSTS
One feature that distinguishes the law of breach of confidence from other areas of IP law is that
constructive trust is a possible remedy. If a confider succeeds in a claim for breach of
confidence, the court might order that property derived from the breach be held by the
confidant on trust for the confider in order to enable the claimant to obtain priority over general
creditors, to recover profits-from-profits made by the def, to obtain compound interest, and to
bring action outside normal contractual limitation periods.
Ocular Sciences Laddie J accepted a constructive trust might be available where there was an
existing fiduciary relationship, and that there would usually be such a relationship where there
existed a confidential obligation;
AG v Blake a constructive trust was not considered an appropriate remedy for breach of
contract, since it was only relevant to part of the acquisition made as a result of the breach;
25

United Pan-Europe communications v Deutsche Bank AG - CA held a constructive trust might be
available as a remedy for breach of confidence even if the breach was only relevant to the
acquisition made.
CRIMINAL LAW
In English law, taking confidential info is not theft. While s.4 Theft Act 1968 says that property
includes other intangible property, it has been held in a number of cases that for these
purposes information is not intangible property.
Oxford v Moss undergraduate at Liverpool University obtained the proofs of an examination
paper before the exam and returned it after reading it; held: not theft because the info was not
property and there was no intention of depriving the university of the info;
Calls of criminalisation of misappropriating trade secrets => Law Commission consultation
paper concluded the case for criminal offence of trade secret misuse is a strong one: economic
importance of protecting business investment, close analogy between trade secrets and
property in the strict sense BUT practical problems of legislating: reaching a satisfactory
definition of the concept of trade secrets, whether errant employees should be subject to
criminal liability, and the appropriate scope of a public interest defence.

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