Types of information: personal, commercial and state

The action for breach of confidence provides the only legal mechanism in United Kingdom law
to protect ideas and information as such. Other categories of intellectual property rights require
ideas and information to be embodied in a tangible form, such as inventions (patents), works
(copyright) or the appearance of products (designs). Although there can be no property rights in
information (Boardman v Phipps [1967] 2 AC 46, HL), where information, which is not in the
public domain, has been disclosed in circumstances which impose an obligation on the recipient,
then its use or further disclosure may be restrained.

Information protected by the action for breach of confidence may be commercial, personal
or governmental.

 Commercial information may relate to an idea for a new television series, a new product
(which might or might not be capable of patent protection), steps to be taken in a
manufacturing process or a list of valued customers.
 By contrast, personal information will involve facts about an individual which they
regard as sensitive and, therefore, private.
 Government information concerns state secrets and other material about the internal
workings of the state and its agencies, which the government would rather not be made
public.

You will find that the leading cases to which you will be referred are drawn from each of these
three areas. The principles which they establish are applicable across the whole area of breach of
confidence. Nevertheless, you should focus your reading on the way in which breach of
confidence operates in the commercial world to protect trade secrets.

The relationship between breach of confidence and human rights

 Cases: Naomi Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457 (HL)
(especially the judgment of Lord Hope); Von Hannover v Germany (2004) 40 EHHR 1;
Douglas & Zeta-Jones v Hello! Ltd [2001] 2 WLR 992 (CA) (especially the judgment of
Sedley LJ) (this concerns the application for interim relief); Douglas & Zeta-Jones v
Hello! Ltd (No 2) [2005] 4 All ER 128 (CA) (this concerns the substantive issues);
Douglas v Hello! Ltd [2007] 2 WLR 920 (HL) (do not try to read the whole case, only
 those parts relating to whether the defendant was liable to OK magazine as well as Mr
Douglas); Murray v Express Newspapers [2009] Ch 481 (CA).

One particular area of recent judicial activity has been in relation to privacy. In several decisions
dealing with personal information, the courts have held that, when combined with the Human
Rights Act 1998, the action for breach of confidence is the means to create a right of privacy,
although in this context the proper name for the action is not ‘breach of confidence’ but ‘misuse
of personal information’ (see Lord Nicholls in Naomi Campbell v Mirror Group Newspapers Ltd
[2004] 2 AC 457). You should note, however, that these cases (many of them about high-profile
celebrities) involve unique facts. Further, in each case, the court has been required to balance
Article 8 of the European Convention on Human Rights (ECHR) (respect for private and family
life) with Article 10 (freedom of expression). The significance of these cases from the
intellectual property perspective is that they move us a step closer to the creation of a right of
personality.