Breach of Confidence Cheat Sheet PDF

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Statement of the Issue Step 1: Will [PLAINTIFFS NAME] be successful in a claim from [REMEDY] in [CAUSE OF ACTION] against [DEFENDANT] when [INSERT MATERIAL FACTS] The issue is whether [PLAINTIFFS NAME] will be successful in [REMEDY] against [DEFENDANT] when [INSERT MATERIAL FACTS] Step 2: Deal with each sub issue in relation to each issue, by using the three limbs of the Coco test as sub issues to be determined for each issue Did the information received by [X] have the character of confidentiality? Was the information received by [X] in circumstance importing an obligation of confidence? Do [X] actions amount to unauthorised use and did it cause detriment to the communicator? What are the public policy considerations that are relevant on these facts and based on these facts do the public policy considerations support [X] or [Y]?

Setting out what must be satisfied For an action in BoC to be successful, three elements established by Justice Megarry in Coco v AN Clark must be satisfied. Affirmed in NZ in Court of Appeal at A v B (Consolidate) OR the UK at A v B. The elements are the following; the information must have the necessary quality of confidence about it, the information must have been imparted in circumstances importing an obligation of confidence, and there must have been an unauthorised use of the information to the detriment of the party communicating it. If the plaintiff is NOT government the question is… What are the public policy considerations that are relevant on these facts and based on these facts, do the public policy considerations, on balance, support the plaintiff’s case or the defendant’s case? If the plaintiff is the government then the question is… Does the plaintiff have the onus of establishing that restraint of publication is in the public interest? Further sub-issue if the plaintiff is government... Does the defendant have a public interest defence?

Coco Limb 1 Coco v AN Clark

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  Stephens v Avery

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    Spycatcher

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PvD

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AvB

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EQC v Krieger

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Public property or public knowledge is not confidential Something construed from materials on the public domain may possess the necessary quality of confidence o Can become confidential through the application of the skill and ingenuity of the human brain Information can be confidential if it is partly private and partly public The mere simplicity of an idea does not prevent it from being confidential Grossly immoral information doesn’t have the necessary quality of confidence however this is hard to establish because there is no commonly accepted standard of what is grossly immoral Trivia or tittle tattle will not be protected by an action of breach of confidence The mere fact that two people know of a secret does not mean that is ceases to be confidential Information ceases to be confidential when a substantial number of people know about it Information about sexual conduct can be subject to a duty of confidence The information has to have the basic attribute of inaccessibility to be confidential Information disclosed to a limited part of the public can still be confidential Information from details of a hospital or psychiatric hospital have the necessary quality of confidence Matters relating to sexual conduct both inside and outside of marriage have the necessary quality of confidence Relationships outside of marriage are less deserving of protection Information about private affairs with a public figure are somehow less confidential The fact that a relationship exists is less confidential than the details of said relationship The nature of the information needs to be determined – government, commercial, private etc. Details of insurance claims that people have about their homes does have the quality of confidence

Coco Limb 2 Coco v AN Clark

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If information is blurted out in public there is no duty on those who hear it to hold if confidential The reasonable person test – “if any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was

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 Stephens v Avery

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  Duncan v MPDC

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PvD

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Hosking v Runting

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EQC v Krieger

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Coco Limb 3

given to him in confidence, then this should suffice to impose upon him the equitable doctrine of confidence” If commercial or industrial info is given to another person with a common object the recipient is likely to be bound by confidence Equity will not intervene to protect mere tittle tattle no matter how confidential it is Obligation of confidence is not limited to a contract or preexisting relationship. The circumstances are much broader than that Where it is unconscionable to share there will be a duty Duty of Confidence is based on the broad principle of equity that a person who has received the information in confidence shall not take unfair advantage of it (Spycatcher) If communicated and accepted expressly that affects the conscience of the recipient, then they are bound by a duty Express statement is the clearest possible example of an imposition of a duty of confidence Information shared by a patient to a doctor imposes a duty of confidence. This it to encourage trust in a full and frank communication with a doctor If a third party receives information in circumstances where they know or ought to know that is was previously divulged in a breach of confidence, then they are held by the duty The defendant themselves doesn’t need to have gotten the information directly from the source for them to be under an obligation of confidence If the recipient of the information did not know that it was disclosed to them with confidence or ought to have known, then the recipient is not themselves subject to a duty of confidence Dictum from Lord Goff (Spycatcher) – a duty of confidence may arise where an obviously confidential document is dropped in a public place or wafted by a fan out of a window and picked up by a passer byer Three limiting principles o Duty on attaches to the information to the extent that it is confidential o No duty is attached to trivia It doesn’t matter how far down the chain of recipients the information is, if it was divulged in breach of confidence then they will still be bound by a duty of confidence All that is required for a duty of confidence to arise is for the recipient to be on notice that it is confidential

Coco v AN Clark

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EQC v Krieger

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There must be an unauthorised use of the information Detriment ought to be present but there are cases where no detriment is required e.g. if the information damages someone that the claimant wishes to protect Reasonable recipient conscience test – should a person’s conscious been troubled by disclosing the information Detriment isn’t necessarily required in the case of government disclosure

[Conclusion on Coco limbs here, decide whether there has been a BoC before moving on]

Public Interest Consideration Stephens v Avery

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Duncan v MPDC

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A v B (UK)

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Hosking v Runting EQC v Krieger

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Raised the question of the fundamental difficulties as to the relationship between a right to privacy and freedom of expression The press should be able to publish information for the public benefit, information that is of genuine public interest, not just the interest of the public A doctor may reveal a patient’s medical records to a lay person if they can justify that there is an imminent public interest in disclosing it. There are limitations to this o Must use reason and experience and apply professional conduct in doing so o Disclosure should only be made to a responsible authority o Public interest must be paramount o 8 scenarios listed in judgement para 10-35 pg. 139 Introduced the new factor of the Human Rights Act 1998 (UK) The courts need to determine privacy and confidentiality issues in ways that are consistent with the European Convention on Human Rights Balancing test Public interest in protection of information may be outweighed by the public interest in disclosure The press has a right to freedom of expression The public interest defence is available to defendants to justify disclosure This is where the freedom of expression argument can be bought in

Government information law EQC v Krieger

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Breach of Confidence is to protect the confidences of private citizens and entities, not the government The public has a right to view and criticise government policy

and a legitimate interest in knowing details of the working of government Therefore, the government has to prove that there is a public interest in restraining disclosure of the information o This may not be required in commercially sensitive or private information circumstances To determine if it is government information o Is the plaintiff part of government? o Does the nature of the information relate to the working of government? If answer YES to the two questions, then the plaintiff (government) has the onus of proving that non-disclosure is in the public interest.

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Public defence when plaintiff is government EQC v Krieger

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The defendant can still show that public interest outweighs the government interest in non-disclosure.

Coco test satisfied

Public interest defence? Consider freedom of expression here.

NO

If government = plaintiff, does the information relate to the workings of government?

YES

The information must be released unless the government can show it is in the public interest to be restrained T H E N Does the defendant have a public interest defence?

CASE RATIOS Coco v AN Clark – a manufacturer will be in breach of confidence if he uses information given to him by another person and the information is of confidential nature, the information was imparted in circumstances leading to an obligation of confidence, and the information was used without the person’s consent and to their detriment Stephens v Avery – a confidant can be liable for breach of confidence when there is an express acknowledgement information concerning a sexual relationship is to remain secret and the confidant passes that information to a third party Duncan v MPDC – a doctor may only reveal a patient’s medical information to a lay person if another’s life is immediately endangered, urgent action is required and the revelation would not undermine the concept of medical confidence P v D – without evidence that an obligation of confidence existed between the plaintiff and the source, an unsubstantiated rumour about a person’s health will not be protected by a duty of confidence A v B – publication of details of a transient sexual relationship involving a public figure will not be a breach of confidence where interest in freedom of expression outweighs the privacy interests Hosking v Runting – the taking and publication of photos in a public place will not be protected by an action of breach of confidence, and instead needs to be followed in a breach of privacy claim EQC v Krieger – it will be a breach of confidence for someone to release personal and commercial information when the information was received without authorisation from an employee...