Delict Law: Breach of Confidence

Introduction

• Delict law allows a remedy if someone shares information about another person.
• Remedies include breach of confidence, misuse of private information, and defamation.
• A duty of confidentiality may arise in certain situations.
• Maintaining client confidentiality is a must and is not terminated over time.
• Supervisors should ensure employees keep client matters confidential.
• Only the client, legislature acts, or the court can waive confidentiality.
• The duty of confidentiality doesn't apply if a client indicates they will commit a crime.

Breach of Confidence

• Coco v AN Clark (Engineers) Ltd [1969] RPC 41 is a relevant case.
• For breach of confidence, the information must be confidential.
• The disclosure circumstances must impose an obligation of confidence.
• Unauthorized use of information by the defendant must cause detriment to the plaintiff.
• Attorney-General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109, also known as "The Spycatcher Case," outlines limiting principles.
• Confidentiality applies only to the extent that information is confidential.
• The duty of confidence doesn't apply to useless or trivial information.
• Laws protecting confidence may be outweighed by public interest favoring disclosure.
• Duchess of Argyll v Duke of Argyll [1967] Ch 302 discusses adultery.
• Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457 is another case to consider.
• Breaching confidence is an actionable wrong.
• Confidential information shouldn't be trivial/useless or already in the public domain.
• The person whom information is disclosed to must owe a duty of confidence for a breach to be actionable.

Misuse of Private Information

• Important to consider whether the law should recognize a right of privacy.
• Wainwright v Home Office [2004] 2 AC 406 relevant.
• One must consider the circumstances within which the information was disclosed.
• There is a question of whether someone's status (e.g., celebrity) affects their right to privacy.
• HRH Prince of Wales v Associated Newspapers (No.3) [2008] Ch 57 addresses the duty of confidence.
• The law imposes a 'duty of confidence' when a person receives information they know or ought to know is confidential.
• Tort is better described now as "misuse of private information."
• Article 8 of the European Convention on Human Rights says everyone has the right to respect for private and family life, home, and correspondence.
• Public authority interference with this right is only allowed if lawful and necessary in a democratic society.
• Article 10 of the European Convention on Human Rights states everyone has the right to freedom of expression.
• Freedom includes holding opinions, receiving/imparting information without public authority interference.
• Exercise of freedoms may be subject to restrictions/penalties prescribed by law in a democratic society.
• Campbell v MGN Ltd states English law has adapted breach of confidence to provide a remedy for unauthorized personal information disclosure.
• Development has been mediated by the analogy of the Article 8 right to privacy and required balancing that right against the Article 10 right to freedom of expression.
• Ferdinand v MGN Ltd [2011] EWHC 2454 (QB) is another relevant case.

Balancing Articles 8 and 10

• McKennitt v Ash [2006] EWCA Civ 1714 looks at the balance between Article 8 and 10.
• Consideration should be given to whether Article 8 is engaged.
• Ask whether claimant has a reasonable expectation of privacy in the information published.
• If Article 8 is engaged, balance with Article 10.
• Re S (A Child) [2005] 1 AC 593 states neither article has precedence.
• If the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed is necessary.
• Justifications for interfering with or restricting each right must be considered.
• A proportionality test must be applied to each.
• Axel Springer AG v Germany [2012] EMLR 15 is a case to consider.
• Aspects to consider include the article's contribution to a debate of general interest.
• The subject of the article and how well-known the relevant person is is also important.
• Prior conduct, the method of obtaining information and the content and form of the publication are all key.
• Douglas v Hello! Ltd (No.6) [2005] EWCA Civ 595 is important.

Examples

• Murray v Express Newspapers plc [2009] Ch 481 provides some examples.
• The attributes of the claimant in the case are important.
• Also consider the nature of the activity, location, nature/purpose of intrusion, and absence of consent.
• Weigh the effect on the claimant and circumstances/purposes of information reaching the publisher.
• Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch) is relevant.
• BC v Chief Constable of Police Scotland 2021 SC 265 is another case to consider.
• Stoute v News Group Newspapers [2023] EWCA Civ 523 provides more insight.

Criminal Investigations

• Bloomberg LP (Appellant) v ZXC [2022] UKSC 5 relates to criminal investigations.
• If it is established that the relevant information was that a person, prior to being charged, was under criminal investigation then the correct approach is for a court to start with the proposition that there will be a reasonable expectation of privacy in respect of such information.
• Consider all circumstances to establish whether the reasonable expectation either does not arise at all or was significantly reduced.
• If the expectation is reduced it will bear on the weight to be attached to the article 8 rights at stage two.
• Richard v BBC [2019] Ch 169.