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Breach Of Confidence Notes

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1. Involves equitable or contractual duties of confidence owed by D to C, where C has given some information to D.

2. Is breach of confidence where: 1) Information divulged has necessary quality of confidence about it 2) Information was imparted in circumstances importing an obligation of confidence 3) Was unauthorised use of that information to detriment of party communicating it
- Coco v Clark [1969]


1. i) ii)

2. Traditional test applies to commercial or governmental information,

3. Information which may be protected includes: Commercial secrets

1. Coco v Clark [1969]
Governmental secrets

1. cabinet discussions

2. Attorney-General v Cape [1976]

2. Information may be protected regardless of what form it is conveyed to D in

1. e.g. oral, written

2. Fraser v Thames TV [1984]


1. Information must be confidential

1. i.e. not already in "realm of public knowledge"

2. Fraser v Thames TV [1984]
1) Originality

3. originality of information may suffice to show secrecy

1. i.e. where information is "some product of human brain" which confers confidential nature on it

2. Coco v Clark [1968]

4. thus if idea lacks novelty, not secret

1. De Maudsley v Palumbo [1996]
2) Development of idea

5. simple ideas are capable of protection

1. De Maudlsey v Palumbo [1996]

6. however idea cannot be protected if it is not sufficiently particular and defined

1. vague idea does not suffice

1. De Maudsley v Palumbo [1996]

2. but also no need for idea to be fully developed

1. Fraser v Thames TV [1984] (idea for TV show) 3) Precautions

1. Information will not be confidential if C does not take precautions to keep idea a secret

1. i.e. where he knows inaction will cause information to fall into hands of third party

2. Cray Valley [2003]

2. C's behaviour treated as evidence that info is not confidential. Exclusions

2. Information will not be protected if it is: 1) Immoral

1. very high threshold for immorality

2. Stephens v Avery [1988] (C's homosexuality not 'immoral') 2) Trivia

1. where information is useless or trivia

1. AG v Guardian (No.2) [1990]

2. seems to be high threshold

1. e.g. wedding photos do not constitute 'trivia'

2. Douglas v Hello [2008]
Losing Secrecy

1. Secrecy of information may be lost where it has entered the public domain.

1. AG v Guardian (No.2) [1990]
1) Publication

1. secrecy is usually lost via publication

1. either in UK or abroad

2. AG v Guardian [1990]

2. however even if information has been already published abroad, may still be secret if publishing it in UK would bring it to attention of more people in UK

1. AG v Observer [1990] (Lord Keith)

3. NB to see whether info has been disclosed, necessary to look at what particular information is protected

1. Douglas v Hello [2008] (Lord Hoffmann) (spectacle of wedding as a whole protected)

1. mere speculation in public domain as to nature of information does not suffice

1. to lose secrecy, public must understand information as a statement of fact

2. BBC v Harper Collins [2010]
2) Width of Disclosure

2. information enters public domain where it is so generally accessible it can no longer be said to be confidential

1. AG v Observer [1990]

3. thus mere availability of information to public suffices

1. Mustad [1928] (patented invention)

4. where info not generally available, unclear how widely information needs to be disclosed before it enters 'public domain'

1. e.g. disclosure to 75 friends is not a loss of secrecy

2. HRH Prince of Wales v Associated Newspapers [2006]
3) Publication by Whom?

1. does not matter who publishes info

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