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Friends in Law Journalism |
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Breach of Confidence |
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There is a tort (a civil wrong or breach of a duty to another person, see below), which provides remedies for breach of confidence. A duty of confidence arises when confidential information comes to the knowledge of a person (which can include public bodies), in circumstances where it would be unfair for that information to be disclosed to others, (whether for example by agreement, or pursuant to human rights of privacy). Breach of confidence is the breach of a duty which can give rise to civil court proceedings. Breach of confidence will often be in connection with information being disclosed which has a commercial value. It may also relate to personal information about individuals. Art. 8 of the European Convention on Human Rights, (the right to privacy), has had considerable impact upon this area of law, so that it now protects the misuse of private information. To be successful, an action for breach of confidence must establish 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 damage. The duty of confidence only applies to information not already in the public domain. It does not apply to information which is classified as trivial.
The duty that confidence should be preserved may be outweighed if there is a “just cause or excuse for disclosing it”. There may be a public interest factor supporting an argument for use or disclosure, whether relating to the world at large or to appropriate authorities. A court will be required to balance the public interest in maintaining confidentiality against the public interest justifying use or disclosure. Many public authorities have both legal obligations under both statute and common law to keep certain information confidential. The police may make reasonable use of such material for the purpose of the prevention and detection of crime.
Tort
A tort is a private or civil wrong or injury (other than breach of contract) for which a court of law can provide a remedy through legal action for damages. When a person violates his/her duty to others created under common or statutory law, a tort has been committed.
See also Official Secrets Act
Be aware that the main remedies affecting the press will be injunctions to prevent publication and damages.
Transcript of case relating to Naomi Campbell and MGN House of Lords Decision in case of Campbell (Appellant) v MGN Ltd.(Respondent) [2004] UKHL 22
Transcript of case relating to Michael Douglas and Hello magazine. Douglas & Ors v Hello Ltd. & Ors [2005] EWCA Civ 595 (18 May 2005) http://www.bailii.org/ew/cases/EWCA/Civ/2005/595.html
IP/IT update (comment on development in law of breach of confidence, including reference to Douglas and Campbell cases) Barristers’ site. http://www.ipit-update.com/conf08.htm
Carter Ruck Solicitors Questions and Answers about Privacy and Breach of Confidence cases.
Copyright Friends In Law 2008 Accurate as at 16.9.08 |
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