Breach of confidence

1. English law also provides remedies for breach of confidence. A duty of confidence arises when confidential information comes to the knowledge of a person (including public authorities such as HSE) in circumstances where it would be unfair were that information to be disclosed to others (e.g. because the recipient of the information was on notice, or had agreed, that the information was to be so treated).

2. Breach of confidence is the breach of a duty which can give rise to a civil claim¹. Breach of confidence will usually arise in connection with the disclosure of information which has a commercial value, but can also include personal information about individuals.

3. However, the law governing breach of confidence is complex and continues to develop to “reflect changes in society, technology and business practice”². Further, Art. 8 of the European Convention on Human Rights (dealing with the right to privacy) has reshaped the action for breach of confidence so that it now protects the misuse of private information³. Therefore, if in doubt you should seek legal advice from the Legal Adviser’s Office.

4. For an action for breach of confidence to be successful it must be established that:

   • the information has “the necessary degree of confidence about it”;
   • the information was provided in circumstances importing an obligation of confidence; and
   • (for an injunction or declaration to be granted), there was an unauthorised use or disclosure of that information and, at least, the risk of damage⁴.

5. The courts have held that the duty of confidence only applies to information not already in the public domain. It does not apply to information which is trivial⁵.

6. The duty that confidence should be preserved may be outweighed by some other public interest factor which favours use or disclosure, either to the world at large or to the appropriate authorities. This may require a court to balance the public interest in maintaining confidentiality against the public interest favouring use or disclosure⁶.

7. Certain public bodies, including HSE, have both statutory⁷ and common law⁸ obligations to keep certain information confidential. However, the police may make reasonable use of such material for the purpose of the prevention and detection of crime⁹.

8. Disclosure of confidential information will not be restrained where there is a ‘just cause or excuse for disclosing it’¹⁰.

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Footnotes

1. Lord Nicholls in Campbell v MGN Ltd [2004] A.C.457 at 464-5 summarised the law of confidence as “[the imposition] of a duty of confidence whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential”
2. Douglas v Hello! Ltd [2001] QB 967, per Keene LJ.
3. Campbell v MGN Ltd [2004] A.C.457
4. Coco –v- AN Clark (Engineers) Ltd. [1969] RPC 41; Murray –v- Yorkshire Fund Managers Ltd [1968] 1 WLR 951. See generally Clerk & Lindsell on Torts, 19th edition (2006), Chapter 28, paragraphs 28-01 and 28-02
5. Faccenda Chicken Ltd v Fowler [1987] Ch. 117
6. Attorney General –v- Observer Ltd. and Others (on appeal from Attorney General –v- Guardian Newspapers (No.2)) [1990] 1 AC 109, see especially pages 281 B-H and 282 A-F, per Lord Goff of Chieveley. See: Clerk and Lindsell on Torts, 19th Edition (2006), Chapter 28, paragraph 28-05
7. See, for example, s.28(2) and (7) of the Health and Safety at Work etc. Act 1974 and regulation 4 of the Environmental Information Regulations 1992 (SI 1992 No 3240 as amended by SI 1998 No 1447)
8. For example, photographs taken by the police of a suspect under compulsion or a statement taken under caution (Halliwell –v- Chief Constable of Derbyshire [1995] 4 All ER 473; Taylor –v- Serious Fraud Office [1998] 4 All ER 801).
9. Halliwell –v- Chief Constable of Derbyshire, [1995] 4 All ER 473; Malone –v- Metropolitan Police Commissioner [1979] 2 WLR 700; R –v- Chief Constable fo the North Wales Police, ex parte AB [1998] 3 WLR 57, DC + CA. However the police are not entitled to disclose seized documents to a third party in civil proceedings: Marcel v Commissioner of the Police of the Metropolis [1992] 1 All ER 72, but see also Peter Rowe and Others –v- Nicholas Martin Fryers and Another [2003] EWCA Civ 655 (8 May 2003) CA.
10. Malone –v- Metropolitan Police Commissioner [1979] 2 WLR 700 at 716, per Sir Robert Megarry V-C and see also W –v- Edgell [1990] Ch. 389; and R –v- Crozier [1991] Crim LR 138, CA.