The general law of confidential information provides legal recourse against those who disclose secrets to others in confidence and where the recipient subsequently divulges that information to someone else. It also extends to companies which have in turn been passed the information by the original confidant, and applies in relation to trade secrets, sensitive commercial information and all forms of intellectual property rights.
The legal doctrine of confidence has existed in English law for centuries, and is well developed and flexible, so as to apply in any situation where the prerequisite conditions exist.
Individual confidentiality claims rise and fall on their own merits. There are a number of important cases that have served to redefine and re-conceptualise the legal doctrine of confidentiality. These cases serve as useful starting points for individuals and businesses seeking to take advantage of the basic legal principles that apply to confidentiality claims.
These cases also point to the importance of taking the rudimentary steps and precautions to protect confidential information expressly by, for example, the use of confidentiality clauses in both internal and external contracts and notices on documents which disclose confidential information.
The test in Coco v Clark is the traditional formula for establishing whether a breach of confidence amounts to an actionable breach. Megarry J laid down a tripartite analysis of the requisite elements to establish a legal right to claim against a company which unlawfully discloses confidential information:
The information must have the necessary quality of confidence;
The information was imparted so to import an obligation of confidence;
There was an unauthorised use of the information to the detriment of the confider (although the element of detriment is not always necessary).
On the facts of Coco v Clark the information was not found to be of a confidential nature as the information was already in the public domain. This result however is not why the case is central to the English law of confidentiality. It was the setting up of the requisites which clarified the law and the elements required to assert the right to prevent others from disclosing confidential information.
The principles in Coco continue to be relevant and is frequently cited as the starting point to establish a breach of confidentiality case. A number of important comments were made by Lord Goff in the Spycatcher Case, which concerned an ex-MI5 agent who wrote a controversial book about his career which was subsequently banned in England.
The then House of Lords (now the Supreme Court) considered the nature of a breach of confidentiality in detail and affirmed the test in Coco. It added a number of important qualifications. Trivial information, useless information and information that was already in the public domain was excluded from the general duty of non-disclosure. It also stated that the public interest in preventing publication may be outweighed by the public interest in disclosing information.
Another important development in the area of breach of confidentiality was Douglas v Hello! [2008]. The House of Lords expanded the law of confidence to cover a situation where the defendants took photos of Michael Douglas’ wedding, when another magazine held the exclusive rights to the photos. Lord Hoffman was satisfied that the three conditions in Coco were met, for reasons which include that the exclusive rights granted to the first magazine set up the wedding whereby the events taking place at it were confidential.
The ratification of the European Convention on Human Rights has had a significant effect on the modern law of confidentiality, in particular the right to respect for private and family life in Article 8.
This was seen in Campbell v MGN Ltd [2004] where the House of Lords held that Naomi Campbell’s confidentiality rights were breached when the Daily Mirror published a photograph of her attending Narcotics Anonymous.
The application of the legal concepts of confidentiality and the right to privacy require the courts to adopt a balancing exercise between Article 8 and Article 10 (freedom of expression) – a significant expansion on the pre-existing law of confidential information. Prior to the case, there was no right to privacy in England other than that granted by the general law of confidential information.
The general law of confidence in England provides flexible and robust protection for confidential information. Rather than rely on the general law however, businesses which rely on secret business processes, skill-sets, manufacturing techniques or have intellectual property rights as their stock in trade are well advised to assess its business processes and manage the release and extent of sharing of secret information.
The baseline for businesses which rely on continuing secrecy of confidentiality should consider:
Including contractual clauses setting up the default position that information of the business is confidential ;
Marking confidential information as confidential prior to releasing copies to third parties;
Making information sharing policies within a business available to staff so that the sensitivity of information is made clear.
Taking these simple steps greatly improve the position of companies which has suffered at the hands of a person who has breach the trust placed in them and unlawfully disclosed or misused confidential information.
These baseline suggestions do not cover all situations to protect valuable assets of businesses. Skilled and experienced intellectual property lawyers are able to provide legal advice on how business can combine the offering of the law of confidential information with other areas of intellectual property, such as copyright, trade mark law and other laws which serve to safeguard the assets of the business and place the business in a position to do something about it when people do the wrong thing.
Businesses or individuals looking to protect confidential information or to bring a claim for breach of confidence should seek specialist legal advice, please contact Leigh Ellis for more information.
For business legal advice and more information on protection of confidential information and enforcement of secret information, contact us online or call us on 020 7353 1770.