chapter  7
47 Pages

Breach of Confidence

Introduction 232

7.1 The Juridical Basis of the Action 232

7.2 Development of the Action 234

7.3 The Conditions for a Remedy 234

7.4 Information 235

7.5 Confidentiality of Information 240

7.6 Residual Confidentiality in Published Information 245

7.7 The Obligation of Confidence 250

7.8 The Direct Recipient – Express Obligations 251

7.9 The Indirect Recipient 258

7.10 No Relationship 260

7.11 Breach 264

7.12 Defences 267

7.13 Public Interest 268

7.14 Remedies 272

When information is imparted to another in confidential circumstances, and is either used or disclosed without authority, breach of confidence provides a remedy. The action applies to any type of information, whether commercial, private or governmental. In the intellectual property field, the action stands as an alternative, or an adjunct, to statutory design, copyright or patent protection. Confidence has the advantage of not needing any formalities of application or registration, or the payment of fees. It also has the advantage that it can be implied from the circumstances in which information is divulged between the parties to an action. However, the obligation to preserve confidence is dependent on there being a reasonable expectation of confidence between those parties and, once the information has been disclosed to the public, there can be no effective further secrecy. In addition, protection for information under the Data Protection Act 1998 should not be forgotten (see 18.9).