Breach of Confidence PDF

**[Breach of Confidence]** ====================================== The equitable obligation of confidence is used to protect information from unauthorised misuse or exploitation by others. ***Coco v A N Clark (Engineers) Ltd:*** - - A comprehensive statement of the law of confidential inform...

**[Breach of Confidence]** ====================================== The equitable obligation of confidence is used to protect information from unauthorised misuse or exploitation by others. ***Coco v A N Clark (Engineers) Ltd:*** - - A comprehensive statement of the law of confidential information for Australian purposes was given in ***Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services***. **Gummow J** identified the four elements of the obligation that must be demonstrated by the plaintiff: 1. 2. 3. 4. - **Specificity:** The plaintiff must be able to precisely specify the information she claims is protected because the court has to assess whether that information is, in fact, confidential or whether any confidentiality it once had has been destroyed by publication. ***O'Brien v Komesaroff:*** **Mason J** → The Full Court held that \[the unit trust deed\], when read on its own, without the proof of further material facts, none of which were pleaded, was not a sufficiently precise definition of what was the confidential information which was to be the foundation of an action for breach of confidence. **Quality of Confidence:** Whether information has the necessary quality of confidence (it is confidential) very much depends on the individual circumstances of each case. Essentially, it mustn\'t be public knowledge. In many cases, confidential information is easily recognisable, e.g. medical records. However, so long as information retains its confidential nature, there is no restriction on the type of information that can be protected or the form that information can take. ***Australian Football League v Age Company Ltd:*** Kellam J states that 'the question of whether or not the information can be said to have passed into the public domain is a question of fact.' - 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'. **Circumstances Importing an Obligation:** The obligation to observe confidentiality arises in circumstances where the recipient of the information knows or ought to know that the information cannot be used without the authority of the confider. The test is whether a reasonable person in the position of the confidant would have realised the information was confidential (i.e. it may be inferred from the relationship or the nature of the information) - - - ***Smith Kline***: "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." **(Gummow J)** **Actual or Threatened Misuse:** Liability can attach whether the misuse was accidental or unintentional. - If the confider has imparted the information without placing any restrictions on its use, the confidant is free to use it at will. Where the plaintiff has not directly confided information to the defendant, it is more likely that a blanket prohibition on use will be assumed, as the plaintiff never considered passing the information to the defendant at all. - On the other hand, in some instances, statutes permit or even mandate use of what would otherwise be confidential information. Alternatively, any obligation of confidence owed can be limited for reasons of public policy. - **Personal Information: *ABC V Lenah:*** "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." **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: - ***Does the plaintiff need to show a detriment will be suffered?*** Australian courts do not require detriment as a precondition to relief, except perhaps in the case of governmental information. **Gummow J** explained why this was so in the ***Smith Kline*** case. - It is recognised that the need to preserve a level of transparency in [government dealings] is important: - His Honour commented that disclosure in non-prejudicial circumstances is in the public interest as it promotes public awareness and discussion. Disclosure will be restrained where it is contrary to public interest due to prejudice to national security, foreign relations or the ordinary business of the government. **Defences to Breach of Confidence:** The defendant's best chance lies in showing that the information is not, in fact, confidential, or that the use was not unauthorised. **Public Interest:** Australian reaction to this defence has been more restrained, and its availability 'remains uncertain'. - In ***Australian Football League v The Age Co Ltd,*** the defendant newspaper argued that information concerning footballers' drug use could be published as it exposed an iniquity. **Kellam J** held that in order to rely on the iniquity rule the defendant had to establish that: 1. 2. 3. Courts draw a distinction between 'what is interesting to the public and what it is in the public interest to make known' **Change of Position:** In the context of breach of confidence, the defence could be made available to innocent third party recipients of information. Australian decisions on the availability of the defence are inconclusive. - **Protection of Private Information:** Limited protection has also been provided in Australia via the action for breach of confidence (Giller v Procopets) - - All Australian jurisdictions except Tasmania, however, have legislated to make the kind of publication that occurred in Giller a criminal offence. **Remedies For Breach of Confidence** **Injunctions:** (to prevent publication): Once information has been misused, an injunction will not be awarded unless the plaintiff can show the likelihood of repetition. In the case of an injunction sought for breach of the equitable obligation of confidence, the court is not required to consider whether damages will be an adequate remedy, as common law damages will not be available in any event. **Springboard Injunction:** Where the defendant has made use of confidential information and obtained a 'head start' in business. The information would have lost its confidential character, but the remedy imposes restrictions on the defendant on making approaches to customers. Under the springboard doctrine: a wrongdoer can be prevented from getting a commercial advantage for a limited period of time. **Account for Profits:** Misuse of commercially valuable information may attract the award of a monetary remedy. An account of profits will be particularly appropriate where the defendant has used the plaintiff's information to obtain a 'head start' in getting its product to the market. (However, often unpopular choice) - - - **Equitable Compensation:** The principle behind the awarding of equitable compensation is restoration of the value of the plaintiff's right that has been lost. Compensation is usually assessed at time of trial, with the benefit of hindsight. The court must try to assess how much compensation it takes to restore the plaintiff to her former position. - - **Miscellaneous Orders:** In some cases of breach of confidence, the plaintiff risks further damage unless the information in question is removed from the defendant's possession or otherwise destroyed. Orders for delivery up and destruction achieve this aim. - - A modern variation of this order is one directing the defendant to delete electronic copies of confidential information as well as destroying hard copies.