Breach of Confidence LAWS2500/8010 PDF

10/24/24 Breach of Confidence LAWS2500/8010 DR MICHAEL NANCARROW 1 The Action for Breach of Confidence Government...

10/24/24 Breach of Confidence LAWS2500/8010 DR MICHAEL NANCARROW 1 The Action for Breach of Confidence Government (balance the publics right to Private: action Commercial: May know with the may also be also be protected governments available for by patent, trade ability to operate defamation. marks etc. in secret). Action may also lie under Freedom of Information Act. 2 2 Gummow makes that point in Fairfax that the public has a right to know (public interest). It's not about just having information to evaluate what governments do, the government can also state that it can't be released into a public forum because it could impact national security, 1 or public safety. Equity doesn't normally intervene as Gummow points out in Fairfax.  10/24/24 Origins of the Action Property Contract Tort Unjust enrichment Trust or confidence The general equitable jurisdiction 3 3 Elements of the modern cause of action: Coco v A N Clark (Engineers) Ltd RPC 41 per Megarry J SB 12.2A The three elements concerning Coco (FOI) The information must have the necessary quality of confidence about it. The information must have been imparted in circumstances importing an obligation of confidence. There must be an unauthorized use of that information to the detriment of the party confiding the information. 4 4 In Coco v A N Clark (Engineers) Ltd RPC 41 in this case Coco alleged that their design (information) was being stolen and ordered a remedy (prohibitory injunction) But the plainti was unable to show that the information presented was con dential in nature and had unauthorised use- as 2 opposed to information readily available from public sources.  What is the "public domain?" See the case of AFL v Age Company Ltd (2007) If it's a third 10/24/24 strike then we're going to publish your name and other details.Today it's become about big money. This case was about 17 years ago and the internet has evolved rapidly since then. Quality of Confidence AUSTRALIAN FOOTBALL LEAGUE V AGE COMPANY LTD (2007) 15 VR 405 SB 12.2.1.1A Three AFL footballers tested positive to drug use. The anti-doping code meant that the names of those who had tested positive were to be kept confidential. The names of the three players were publicized on internet chat sites with comments such as he “knows a lot about ice” and that one player had a “nostril related hamstring” The Court held that confidentiality was not destroyed by “speculative gossip, innuendo and assertion by unknown persons” on internet chat sites. Nor could it be said that the information had entered the public domain simply because it had appeared on the internet and was known among the AFL ‘family’ Just because it's on an internet website that doesn't mean that 5 5 it's entered the public domain. But it was through chat forums that not everyone had access to. Arguably this information seems out of touch by today's standards concerning how easy it is to share information via the internet. Personal Information Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 per Gleeson CJ “Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.” 6 6 The fact that a newspaper wants to publish a scoop may indicate that the digital information. You have to ask whether they would make the same judgement in today's era. Would this case be decided the same way today? It's about what can be quality of con dence when a situation is released on the 3 internet. Look carefully at the statement or quotation that's been given.  10/24/24 Government Privacy and cyber spying 7 https://www.abc.net.au/news/2018-04-29/labor-blames- government-for-security-leak/9708594 7 ADVANTAGES OF A BREACH OF CONFIDENCE CLAIM TO PROTECT TRADE SECRETS Second, where there has been a business relationship between the First, the trade secret owner and the recipient concerning the use of the Nevertheless, provided owner provides the trade secret, but the that the breach of confidential information to information is confidence claim can be the recipient and they are communicated to, and in some form of business made good against the used by, a third party with first recipient, equity will relationship, but there is whom the owner has had generally restrain no legally binding relationship and unable to no prior dealings at all. unauthorised use by the Hence, prima facie there third party. establish a fiduciary duty. will be no contractual or other obligation owed by the third party to the trade secret owner. 8 8 We've seen this idea of third party accessible liability but it was certainly at play in the assignment. We've also seen before that Equity has had a general interest in the impact on third parties. 4  10/24/24 Confidential Information v ‘Know how’ Know-how is information that is confidential “but which once learned necessarily remains in the servant’s head and becomes a part of his own skill and knowledge applied in the court of his master’s business”. The Courts have recognised that know-how forms part of an employee’s acquired or inherent state of knowledge. While employers are entitled to protect their confidential information from being used by former employees to their detriment, this interest must be balanced against the: “prima facie right of any person to use and exploit for the purpose of earning his living all the skill, experience and knowledge which he has at his disposal, including skill, expertise and knowledge which he has acquired in the course of previous periods of employment.” 9 9 Circumstances importing an obligation of confidence where it is stated that the information is confidential where it can be inferred from the relationship e.g. marriage, solicitors and other fiduciaries, priests etc employer / employee Other situations: where the information is acquired by eavesdropping, accidentally or stolen. 10 10 5 Smith is a big Pharma company that's in the business concerning selling drugs that have been through approved trials and the public authority stated yes you've provided us with the relevant information. But Smith Kline was a generic brand. All of 10/24/24 that research that was done is shared against what the generic provider wants to be able to supply to see if it meets the requisite standard and Smith Kline was not happy about their information being released to a competitor. Circumstances Imposing an Obligation of Confidence Smith Kline & French Laboratories v Secretary, Department of Community Services & Health (1990) 22 FCR 73 SB12.2.2a 11 “To determine the existence of confidentiality and its scope, it may be relevant to consider whether the information was supplied gratuitously or for a consideration; whether there is any past practice of such a kind as to give rise to an understanding; how sensitive the information is; whether the confider has any interest in the purpose for which the information is to be used; whether the confider expressly warned the confidee against a particular disclosure or use of the information - and, no doubt, many other matters.” As a consumer what would be your expectation of the generic? You would hope that it works but it's also safe (been tested). 11 What the Court decided was; that the department neither knew or ought to have known about the limited purposes of the disclose and thus they could use it in the way that they were intending. Unauthorised Use - Government COMMONWEALTH V JAMES FAIRFAX (1980) 147 CLR 39 PER MASON J SB 12.2.3A “The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. …. when equity protects government information it will look at the matter through different spectacles.” 12 12 The other feature that comes from Coco is unauthorised use; (also applicable in Fairfax) use or threatened use of con dential information against the plainti s wishes is required to be shown. (Brian page 329). 6  10/24/24 Detriment COMMONWEALTH V JAMES FAIRFAX (1980) 147 CLR 39, 52 PER MASON J SB12.2.3A It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review, and criticise government action. Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless the disclosure is likely to injure the public interest, it will not proceed. 13 13 Defence: Iniquity and Public Interest AUSTRALIAN FOOTBALL LEAGUE V THE AGE PTY LTD (2006) VR 419 SB 12.3A First, the proposed Secondly, the iniquity had disclosure would disclose a character of public an iniquity that that was a importance in the sense crime, civil wrong, or that it affected the serious misdeed of public community as a whole or importance: public welfare; Thirdly that the proposed The newspaper failed to disclosure was to be made to a person with satisfy the court on all real and direct interest in three grounds redressing the alleged crime, wrong or misdeed. 14 14 This case demonstrates that Courts will be distinguishing between what is of interest to the public versus what is in the public interest. 7  10/24/24 Remedies Springboard Injunction: Where defendant has made use of confidential information and Under the springboard obtained a ‘head start’ in doctrine: a wrongdoer can be Injunction to prevent business. The information prevented from getting a publication would have lost its confidential character, but the remedy commercial advantage for a imposes restrictions on the limited period of time defendant on making approaches to customers. Equitable Damages Account of profits Equitable Compensation 15 15 Springboard injunction; under this doctrine the wrongdoer can be prevented from getting a particular commercial advantage for a particular time window. it must be t for purpose- you can't seek an account of pro ts (remedy) if there hasn't been any pro ts. It doesn't work. Yes there's a smorgasbord but you don't choose everything like you would a bu et- you have to select where appropriate. Don't confuse equitable damages with equitable compensation. They're di erent! Equitable damages in lieu of or in addition to an injunction of speci c performance- you need an enforceable contract for speci c performance. That's how equitable damages work but equitable compensation is actually to compensate the loss that equity can provide. But it's calculated in a di erent way than common law. 8