Breach

of Confidence
6FFLK003 Law of Trusts
Lecture 5 • 10 October 2017
Professor Robert Chambers

1
 A breach of confidence
occurs when someone…
a) receives confidential information,
b) has a duty to use it only in certain ways, and
c) misuses that information in breach of that
duty.

2
 Five Questions
1. What is confidential information?
2. What creates a duty of confidence?
3. What constitutes a breach of that duty?
4. How does the law respond to the breach?
5. Do people have property rights to
confidential information?
3
 What is confidential information?
Information is …
• confidential if not public knowledge
– e.g. closely guarded secret shared by two people
– e.g. known to employees of large company
• not confidential if available to members of
trade or profession even if not to others
4
 What is confidential information?
Information …
• can be confidential even if some components are
not
– e.g. customer lists
– e.g. photos of celebrity weddings (Douglas v Hello!)
• ceases to be confidential if disclosed to the public
even if disclosure was a breach of confidence
5
 Creation of a Duty of Confidence
• We are free to use or publish information
unless under a duty not to do so.
• duty often created by contract
• duty can arise without contract
– e.g. physicians, solicitors, priests
– e.g. friends, relatives, lovers, spouses
6
 Creation of a Duty of Confidence
Duty of confidence …
• is usually created by undertaking
– contractual
– professional
– personal
• can arise with without undertaking
– e.g. email sent to wrong address
– e.g. document lost and found in public place
7
 Creation of a Duty of Confidence
Coogan v News Group Newspapers Ltd
[2012] EWCA Civ 48 at [39], per Lord Neuberger MR:
“it is clear that, if information had come into a person’s
hands by happenstance, and that person should have
appreciated that it was confidential, he will be bound by
the confidence. A fortiori where the person intentionally
obtains the information knowing that he was not
intended to receive it, and even more so where he uses
unlawful means to obtain it”
8
 Creation of a Duty of Confidence
People can receive information with no reason to
suspect it is confidential and come under a duty of
confidence later when they discover the facts.
• Franklin v Giddins [1978] Qd R 72
– new variety of nectarine trees
• Talbot v General TV [1980] VR 224
– idea for a new TV programme

9
 Breach of Confidence
Coco v AN Clark (Engineers) Ltd
[1969] RPC 41 at 47, per Megarry V-C:
“an unauthorised use of that information to
the detriment of the party communicating it”

10
 Breach of Confidence
Whether use is unauthorised depends on the duty
• to keep the information secret
• to use only for specific purpose
– e.g. Castrol Australia Pty Ltd v Emtech Associates Pty
Ltd (1980) 33 ALR 31
• confidential report of motor oil tests disclosed to regulator
to check whether proposed TV advertisement misleading
• used to prosecute for misleading magazine advertisement
11
 Breach of Confidence
Detriment to the claimant
• trade secret — financial loss
• personal secret — embarrassment
• government secret — criticism?

12
 Breach of Confidence
Overriding public duty to disclose …
• crimes
• dangers to public health or safety
– cf. Castrol Australia Pty Ltd v Emtech Associates
Pty Ltd (1980) 33 ALR 31
• protect public from misleading advertising
• public better served by confidence w/o fear of misuse

13
Responses to Breach of Confidence
• injunction to restrain misuse
• payment of money
– damages in lieu of injunction
(Senior Courts Act 1981, s 50)
– equitable compensation
– account of profits
• deliver goods containing information
14
 Property Rights to Information
Veolia ES Nottinghamshire Ltd v Nottinghamshire CC
[2010] EWCA Civ 1214 at [111], per Rix LJ:
“confidential information is a well
recognised species of property”

15
 Property Rights to Information
Coogan v News Group Newspapers Ltd
[2012] EWCA Civ 48 at [39], per Lord Neuberger MR:
“while the prevailing current view is that
confidential information is not strictly
property, it is not inappropriate to include
it as an aspect of intellectual property.”
16
 Property Rights to Information
Moorgate Tobacco Co Ltd v Philip Morris Ltd
(1984) 156 CLR 414 at 438, per Deane J:
“Like most heads of exclusive equitable jurisdiction,
its rational basis does not lie in proprietary right. It
lies in the notion of an obligation of conscience
arising from the circumstances in or through which
the information was communicated or obtained.”
17
 Property Rights to Information
Breen v Williams (1995) 186 CLR 71 at 90
per Dawson and Toohey JJ:
“there can be no proprietorship in
information as information, because once
imparted by one person to another, it
belongs equally to them both”
18
Next Lecture
12 October 2017

INTRODUCTION TO TRUSTS

19