Confidentiality

• Equitable action to prevent the disclosure of confidential information (secrets)

• Not an IP right but important in conjunction w/ such things as patents or just as a way of keeping information permanently confidential [longer than 20 years of patent protection]

• Albert v Strange: first such case, dealing w/ etchings, where confidentiality was entertained

• Human Rights Act: it is wrong to disclose information under the right to privacy misuse of information. See as branch that has grown from root of breach of confidence (not in course)

• Coco v Clark – 3-stage criteria for confidentiality:

• Confidential Information

• Obligation to maintain that confidence

• There has been a breach through the information being used or disclosed without authority

Confidential Information

• Douglas v Hello – information has no limitation in form, any type of information can be protected. Wide, extensive open list: can consist of technical devices, plans, photographs, customer lists or personal secrets. This case concerned wedding photographs of Mr. Douglas and Ms. Zeta-Jones – took special care to control all photos that were taken. Special contract with Hello where they paid money to have exclusivity to the photos. Someone else took photos and found their way to the defendant Hello and they were published there. The appearance of the people in that context was found to be the information that was protected (not necessary that the wedding was not secret or the date and venue was not). Shows a broad approach. When a claimant brings a case they must be specific in the information that is to be protected – information that is not in the public domain (i.e. that bride would be wearing wedding dress is not private information). Each picture was treated as a separate piece of information

• Thomas v Guinle: to determine quality of confidence:

• Release of information would be injurious to the owner or of advantage to rivals

• Owner must believe that the information is confidential (not in the public domain)

• Owner’s belief in the above is reasonable

• Information must be judged in light of the usage and practices of the industry concerned

• Fraser v Thomas – can include oral information. Limits on this broad category:

• Information must not be trivial – commercial attractive (Coco v Clark). Heather Mills – very reluctant to find information trivial though. E.g. address important. Economically valuable?

• Must be clearly identifiable/ be sufficiently developed (De Maudsley v Palumbo) – MOS that had a general idea about a night club with very broad characteristics (décor, times etc.). Information was such a general conceptual level and not developed enough to constitute information. Was also not original enough

• A degree of originality? Fraser v Thames – can protect information as long as it is original, adds something to what is already in the public domain. E.g. a new combination of two or three programs will be original as long as it is distinct. “Let’s have a talent show” is not original enough. It is not about labour or skill or creativity….it is about is there something that is different to information already available in the public.

• Court of Equity will not act where it will be unconscionable to act, i.e. contrary to public interest. Gartside v Outram – the secret related to criminal activity. That had no equitable rights. Public interest will need for you to disclose that. Can go beyond criminal activity to cover anti-competitive behaviour etc.

• AG v Guardian Newspaper – concerned publication of Spycatcher that contained memoirs of MI6 Agent. Found it was a total breach of confidence and Secrets Act. Injunction allowed to prevent articles about the book. Government’s injunction was finally discharged because the information was so widely published abroad that it barely constituted a secret anymore. House of Lords held that the government (a public body) had an extra condition to satisfy this breach: had to show there was public interest in keeping this information safe. For individuals this is taken for granted.

When is information confidential?

• Have to determine what is not in the public domain to determine what is confidential.

• A question of fact & degree (look at the circumstances)

• HRH Prince of Wales v Associated Newspapers – In this case, Prince Charles diaries were very indiscreet about the people he meets. He photocopies them at Christmas time and sends them to certain friends. It is photocopied by an employee and found its way to the hands of the press, the Daily Mail and they publish controversial extracts. Succeeded in confidentiality. Found that the 80 associates that he trusted and sent the letter to did not include public domain because it was not at the point of reaching ‘public knowledge’. Also those in the ring of confidence understood that they were meant to be in confidence.

• BBC v Harper Collins – Involved a stig in top gear whose identity was supposed to not be known. Stig argued that there was no relative secrecy in his identity because it was so known on the internet and so he could publish book on it. Accepted - only relative secrecy will be protected.

• Suhner v Transradio – 246 documents saying half was confidential and the rest was partially confidential. Not granted injunction because no precision in what information was confidential.

• Terrapin v Builders Supply – in past cases, a springboard doctrine has been applied. This is where obtained information comes from a private source and it is used as springboard for activities detrimental to the person who made this confidential information – i.e. creating buildings using this protected information. Problem was that these buildings were in the public sphere and people could dismantle it and find out how it was built, thus defendant argued no confidentiality. Equity will not act in vain – imposed injunction. While information could have been found out easily through reverse-engineering,...

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