Case
law has established that in order to
succeed in an action for breach of
confidence, the claimant must show - Coco
v. Clark (1969):
- The information has the necessary
quality of confidence about it.
- The information was imparted
in circumstances importing an
obligation of confidence.
- The defendant has made
unauthorised use of that
information.
What
is confidential information?
The information
must be secret in the sense of not
being generally known and must not be
trivial.
Where the material is a mixture of
public and private information the
court may deem it confidential if it
would give a "springboard" advantage
over competitors.
Following
termination of a joint venture, the
defendant was prevented from marketing
portable buildings to the
claimant's design even though the
design had been made public through
sales of the buildings and brochures.
What
circumstances give rise to an
obligation of confidence?
The holder of the
information can impose an obligation
of confidence expressly.
In the
absence express agreement the duty to
keep information secret may be implied
from:
- The
surrounding circumstances. In Oasis (1997) a
scene was arranged under strict
security for a photo shoot to be
used as an album cover
- Publication of unauthorised
photographs was restrained on the
basis of breach of confidence in Douglas v. Hello (2007)
- The relationship between the parties, for example employer and employee
When
is use or disclosure unauthorised?
This is a question
of fact in each case. Innocent
misuse of confidential information can
still give rise to liability – Seager
v. Copydex (1967). Exceptionally
the defence may be raised that
disclosure is in the public interest
or in furtherance of the right of
freedom of expression under the Human
Rights Act 1998.
Remedies
for breach of confidence
An injunction
prohibiting further use of the
information may be obtained (even if
the information is in the public
domain). The claimant may also ask for
damages or an account of profits, and
delivery up and destruction of any
property containing the information.