BREACH OF CONFIDENCE 10272020 1 What is Breach

BREACH OF CONFIDENCE 10/27/2020 1

What is Breach of Confidence? • Spans several areas of law - Intellectual property, Tort and Equity • Based on principle that someone who has obtained information in confidence should not take advantage of it in an unfair manner. 10/27/2020 2

Confidentiality • We meet this in various situations: • Documents passed to the media – anonymous or otherwise e. g. Tisdall • Journalists’ sources are owed duty of confidence • Commercial information • Personal private information - medical records/personal relationships 10/27/2020 3

Remedies • Main remedy sought against media organisation = Injunction to prevent use of material (or publication of information) • Other remedies include ‘delivery up of profits’ (in commercial cases) • damages 10/27/2020 4

Definitions • • • Various tests formulated since 1969 Different cases - see: Coco v Clarke (1969) – classic elements Att-Gen v Guardian Newspapers (1990) Australian Broadcasting Company v Lenah Game Meats Pty ( 2001)- criticism of this test 10/27/2020 5

Development of use of B of C ‘Spycatcher’ case – why not use Official Secrets Act? • Ponting case • Useful to ‘manage’ news • Injunction against one is injunction against all - see specimen order on Inforrm’s Blog 10/27/2020 6

Effects of Human Rights Act • Look at s. 12 • Court must not grant injunction unless satisfied that the person seeking it is likely to establish at trial that the publication of the material should not be allowed • Cream Holdings v Banerjee (2004) • Meaning of ‘likely’ – ‘more likely than not’ 10/27/2020 7

Courts must be cautious • They must consider: a. The extent to which the material has or is about to become available to the public OR b. it is or would be in the public interest for the material to be published and Any privacy code 10/27/2020 8

Disclosure in the public interest • When considering disclosing a journalist’s source ask: Is the disclosure of the source necessary? • See the 3 stage test formulated by counsel in Ashworth Security Hospital v MGN Ltd (approved by HL) • Query - is public interest test needed if Art 10 rights engaged? See Goodwin and comments of ECHR 10/27/2020 9

The 3 stage test • 1. Are the interests of justice engaged? 2. If so, the court has to consider whether disclosure is necessary to achieve the relevant ends of justice. 3. As a matter of discretion, court must weigh specific interests of claimant against public interest in protecting journalist’s source 10/27/2020 10

How the law has been developed against the media • Used in serious cases – e. g. Venables & Thompson/Mary Bell case • The early ‘privacy’ cases e. g. Douglas & Zeta Jones/Theakston/a v b plc (Flitcroft) 10/27/2020 11

The development of the law & Art 8 • Art 8 now covers information that is personal & private so any application subject to the process discussed next week under ‘privacy’ • Art 8 does not cover commercial information 10/27/2020 12