Breach of Confidence - Lecture notes 5 PDF

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Breach of Confidence – Week 2

Equity is protecting the Plaintiff against unauthorised use of its confidential information- focus on confidential information Is it the only way of protecting information or knowledge? •

Confidential Info can also be protected by Statute; Contract; Employment Law; IP Law

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Misuse/ Threatened Use of Information- attracts Equity i.e. proscriptive, D can’t use info

What role does it play in society? •

Commerce

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Innovation

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Privacy

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Government secrecy and national security

Equity will not intervene if there is a statute. Equity will fill gaps when statute or common law fail to. Equity imposes an obligation of confidence where: 1. The information is specific (O’Brien); 2. The information has the necessary ‘quality of confidence’ (Coco); info cannot be common or public knowledge 3. Circumstances import the duty (Coco); and – The info should be received by the d in circumstance which import an obligation of confidence 4. Unauthorised use (Coco). Did D use info in an unauthorised way

Information must be specific Why must information be specified to be protected? •

Scope of injunction

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Defendant entitled to know particulars of case to be answered

O’Brien v Komesaroff : There was no specific information that plaintiff had identified. Mason J said ‘to simply say that the information is as to the effect and practical operation of the discretionary trusts and private unit trust schemes does not identify the information and enable the Court to make an order. One needs to know not only what was the information conveyed but also what part of that information was not common knowledge.’

Ocular Sciences Plaintiff claimed defendant used confidential information including contact lenses, equipment, software etc The information specified was ‘more or less everything’ 

“The courts are careful to ensure that the plaintiff gives full and proper particulars of all the confidential information on which he intends to rely in the proceedings.” – Laddie J

What factors should be considered? Laddie in Ocular Sciences: •

The burden on the plaintiff (but not given much weight)

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The link between the pleadings and the remedy

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The ability of the defendant to meet the case.

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The potential for harassment and abuse of process.

Necessary Quality of Confidence What kinds of information can have this quality? What forms of information can have this quality? What does it mean? Defined negatively: Not ‘public property and public knowledge’ – Greene MR in Saltman (cited in Coco) Defined circularly: ‘no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential.’ – Lord Goff in Att-Gen v Guardian Newspapers (1990, HL) Concept of relative secrecy –AFL v Age (2006, VSC) 2 sub categories whether it is secret and whether it has value

Quality of Confidence- secrecy requirement 

ABC v Lenah Game Meats (2001, HC) Factory that slaughtered possums, a group of animal activities sneaked in and took footage and sent it to ABC news, who then broadcasted it. The factory didn’t have secrecy as it was very easy to get in. The meat factory sued ABC news as they are the ones who released it. Once broadcasted it then became public knowledge. When information has been released to the public it does not mean that it has lost its confidentiality. E.g. a valuer that collects public from places such as council and govt and puts a house valuation together, even though everything is public knowledge that document would be confidential as you used your skill to compile it.

How much effort is being put in to maintaining secrecy? 

What if a limited number of people know? 

AFL v The Age (2006, VSC) – AFL drug testing case, info was known to some people only. The names of the players were broadcasted on paid TV (small audience relevant to the AFL). The Age published the information claiming it was already broadcaster therefore it was public knowledge. However Kellam J held that the information has not lost its confidentiality as there was limited publication, the info was on pay TV only those who pay for it watched it, it’s on private Tv. The AFL chat room that circulated the info was considered gossip or innuendo so it wasn’t public knowledge per say. Kellam J said that if info is leaked to forum where you only have limited people you know that means it still holds its quality of confidence therefore The Age was prevented from leaking this info.

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Jane Doe v ABC (2007, VCC – Jane was rapped and ABC named the victim of the rape who had claimed because her identity was revealed in open court it could no longer be a secret. Issue was whether naming someone in open court removed the quality of confidence. Only a handful of people knew therefore it was a weak argument and insufficient to destroy confidentiality. If the info was personal just because a handful of people know does not mean the quality of confidence is lost, not making it public knowledge. Justice Campbell held that the media should not reveal the names of victims of sexual offences, it was held given the nature of the case, the people in court should have known that this is a circle of confidence and secrecy remained

Quality of Confidence- Value Requirement/ Non-Commercial 

In some cases, it will be perfectly obvious that information is inherently ‘confidential’; eg doctors and medical records; our banks and financial matters.

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ABC v Lenah Game Meats (2001, HC) lost on value requirements as the info did not have any value to it and therefore was not worthy of protection, its trivial. 

Is the information trivial or banal?

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Does the info have value or relate to interests that equity will protect?

Quality of Confidence- Non-Commercial / Personal Information 

Giller v Procopets [2004] VSC - Videotape of sexual relations. D filmed, D threatened to show video after breakup. It has quality of confidence.

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Wilson v Ferguson [2015] WASC- Explicit images and text messages. D posted some of the photographs on Fb – QOC. Autonomy or agency, personal integrity, the test is not showing the disclosure of the info is highly offensive.

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Foster v Mountford - Aboriginal religious ceremonies. Religious ceremonies were seen as QOC. The test is autonomy, integrity.

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Douglas v Hello! – a mix of commercial and non-commercial interests? A famous couple including Katherine Zeta Jones promised OK magazine their wedding photos, a journalist from Hello sneaked in to the wedding and took his own photos ad OK magazine suffered, do the wedding photos have the quality of confidence? The test is not commercial value however. The minority held that the photos are not personal and don’t have the quality of confidence.

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Another case referenced in footnotes on pg188 about channel 9, plaintiff wins because the information was seen to have quality because of how the info was put together.

In Australia some information has quality of confidence even though it does not possess any commercial value.

3. Circumstances Importing Duty 

4 ways of receiving confidential information: 1. Court of Equity will restrain the publication of confidential information improperly or surreptitiously obtained; Franklin v Giddons – the fruit picker who crawled under a barbed wire to get the nectarine tree that was specially made. The way it was obtained import a duty of confidentiality as he trespassed. 2. or of information imparted in confidence which ought not to be divulged: Lord Ashburton v Pape [1913] 2 Ch 469, 475 (per Swinfen Eady LJ): Gummow J in Smith Kline from Cth v John Fairfax, also Foster case aboriginal case. The defendant should have known the info was confidential such as Giller (sex tape) and also Wilson (text msgs). 3. Obtained by another, and passed onto a third party 4. Accidentally obtained

Circumstances Importing Duty- Cases Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109 Lord Goff at 281, in obiter, suggested that circumstances importing an obligation of confidence would include: “...where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in some public place, and then picked up by a passer-by.” That would port an obligation of confidence if it’s obvious that the info was confidential. These are called wafting cases.

Blurting cases such as someone blurting info in public and then it becomes public knowledge then it no longer hols the quality of confidence. Coco v Clark (1969, UK) – Megarry J – MAIN CASE FOR EXAM “However secret and confidential the information, there can be no binding obligation of confidence if that information is blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential… [I]f the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realized that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence.” This is the TEST Case Examples: •

Franklin v Giddins

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Douglas v Hello!

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‘Spycatcher’ (AG v Guardian Newspapers) wafting by a fan

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Foster v Mountford and Rigby

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Giller v Procopets

4. Unauthorised Use –page 190 Coco v Clark (1969, UK): ‘… there must be unauthorised use of that information to the detriment of the party communicating it.’ If use is prohibited, simply show use of information not necessary to show intention; if disclosure for limited purpose, show that the unauthorised use was outside the permitted scope e.g. Castrol Doesn’t look at intention.

Do you need to show that the plaintiff suffered detriment? Australian cases you don’t to show detriment, the exception is government cases. Moorgate Tobacco v Philip Morris (1984, HC): ‘substantial concern’ sufficient to ground an action for breach of confidence: Deane J Smith Kline v Dept of Community Services (1990, FC): ‘The obligation of conscience is to respect the confidence, not merely to refrain from causing detriment to the plaintiff’: Gummow J Defences 

Public Interest Defence? Unclear, one might argue it might be in the public interest to reveal some public information. Courts take public interest when looking at the quality of information not as a defence itself.

See Smith Kline (Gummow J) Also:

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Castrol v EmTech

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ABC v Lenah Game Meats Pty Ltd (Gleeson CJ)

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AFL v The Age (Kellam J)- iniquity

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Minister for Immigration v Kumar

These are extra reading, in Australia they are still trying to decide if public interest defence exist whereas it is accepted in England.

Remedies Injunction is the primary remedy. Full range of equitable personal remedies: Consequential orders for destruction and/or delivery up: Franklin equitable compensation: Giller equitable damages: Talbot account of profits: Peter Pan DP No proprietary remedies of constructive trusts awarded for a BOC (breach of Confidence) claim in Australia – but has in Canada.

Summary Start with the 4 elements: 1. Information must be specific 2. Information must have necessary quality of confidence 3. Circumstances importing duty: Would a reasonable person standing in the shoes of the recipient known or ought to have known of the confidentiality of the information? 4. Has there been unauthorised use? Detriment? Defences? (if not dealt with in 2nd element) Assess relevant remedy Injunction Other personal remedies – compensation, a/c profits etc. The 2 and 3 elements are the most important for the analysis....