The Law Of Confidentiality

When information is categorised as confidential, its disclosure or use by a confidant is regulated by certain principles. The law of confidentiality provides a remedy for the unauthorised disclosure or use of information which is confidential in nature and which has been entrusted to a person in circumstances which either expressly or implicitly impose an obligation of confidence. Before an action can be commenced for breach of confidence three criteria must be satisfied:

the information must be confidential

the disclosure of the information must have been in circumstances which give rise to an obligation of confidence, and

there must be an actual or anticipated unauthorised use or disclosure of the information (Megarry J in Coco v A N Clark [Engineers] Ltd [1969] RPC 41)

An action for breach of confidence is based on the law of confidentiality. The purpose of such an action is to prevent the use of information which is confidential. It is intended to make sure that a person in possession of confidential information only uses it for purposes for which it was transmitted to him in the first place. The law of confidence can - as opposed to copyright, which is only concerned with the protection of the form in which information, idea or thought is expressed - protect the content of the information, idea or thought.

However, there are practical limitations:

can you afford to take necessary legal action?

your opponent may be a major corporation that could use its huge resources to fund lengthy, costly court battles

The Function Of Confidence

The main function of the law of confidentiality, or an action for breach of confidence, is the prevention of the illegitimate use of confidential information by a recipient of information. A good conceptual springboard to the understanding of the justification for the protection extended to those items which fall within the ambit of confidence, is the notion that something which people are prepared to pay for must be worth protecting and therefore ought to be protected. However, the courts will only enforce properly identified rights that fall within recognised categories known to law. Some of the items that are protected under the law of confidence are those which do not consist of any specific intellectual property rights under patent, design, copyright or even trade marks law. Traditionally, this has been classified into personal information, governmental secrets and trade secrets.

What Is "Information"?

The information that is protected by the law of confidentiality does not have to be embodied in any document or reduced to any material form, as in the case of copyright, although for practical purposes it is easier to identify information if it is contained in a document. This does create its own problems, for - before the court can extend protection under the confidence doctrine - the information must be traceable to an...