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Breach of Confidence

These notes were prepared in June 2009. They are intended as general information not specific legal advice. If you want legal advice about a particular problem, you can contact me here.

What is a breach of confidence?

This law is surprisingly wide. To bring a lawsuit for breach of confidence, a plaintiff
has only to show:

  1. the information is not in the public domain; and
  2. it is confidential – that is, it was passed on in circumstances that made it clear it was to be treated confidentially; and
  3. it was disclosed (or is about to be disclosed) without authorisation.

There is a defence of public interest.

When is information “not in the public domain”?

This essentially means that it’s inaccessible to the public. If it’s known to a limited
group of people for a limited purpose, that doesn’t mean it’s in the public domain.

When will the courts treat information as confidential?

Has one person given it to another on the basis that it will be kept secret? There are lots of ways this can happen:

What if a source leaks confidential information to a journalist?

The journalist has no direct obligation of confidentiality to the person who originally confided the information. But if a recipient - including a journalist - knows, or ought to know, that the information is confidential and its disclosure is unauthorised, then the courts will probably hold the recipient bound by the confidence, too. So if an employee leaks a journalist confidential company documents and it’s obvious that the employee isn’t authorised to do so, it may well be a breach of confidence for the journalist to publish it further (unless there is a public interest defence).

What if the journalist simply receives information “off the back of a truck”?

If information is obviously confidential, that obligation of confidence is likely to be held to apply to anyone into whose hands it falls. For example, if you were given a copy of Colonel Sanders’ 11 secret herbs and spices, or you found on a park bench a business plan labelled “CONFIDENTIAL”, it would almost certainly be a breach of confidence to publish it.

What if it’s not clear whether or not it’s confidential?

If you’re not sure whether the information is confidential or not, but there is some indication that it might be, you are probably on notice to check out its status before publishing. Deliberately closing your eyes to the obvious won’t help you.

What if you find out about its confidential status later?

If you learn that it’s confidential after acquiring it, you’re probably still bound by the confidence from that point on.

What about stolen information?

Information that is stolen, or obtained by deceptive, surreptitious or unconscionable methods, will probably be held to be confidential. This might include footage taken during a trespass, confidential information extracted by a bribe, a stolen diary, an illegally intercepted communication, or material obtained by eavesdropping.

Are all leaks breaches of confidence?

Potentially, most of them are. Leaks will almost always concern the unauthorised disclosure of confidential information that is not in the public domain. Still, lots of stories contain leaked or otherwise confidential information, and lawsuits for breach of confidence are rare.

Why’s that?

There may be many reasons: plaintiff s figure the cat’s out of the bag; they don’t want to draw attention to it; they don’t understand their rights; they can’t afford a lawsuit; or don’t want to run the risk of losing; they don’t want to appear to be attacking free speech. Even successful attempts to suppress confidential information often end in PR disasters.

How does the public interest defence work?

This defence applies only to matters of legitimate public concern: things that may affect the public or a decent slice of it, and not things that merely titillate the public. It is difficult to define precisely. It is likely to apply to information about threats to public safety or welfare, crime or corruption, exposing lies or deception, or serious maladministration of a government or powerful private agency.

The courts look for proportionality: the greater the harm that’s done by the invasive story, the greater needs to be its genuine usefulness in telling the public something important to their lives. Judges may ask what other steps the media took to verify the information they are claiming is in the public interest.

However, the courts have sometimes bent over backwards to protect information with a strong confidentiality interest – trade secrets, personal health information, defence information, information that affects the administration of justice (such as documents disclosed on discovery), even where there is an element of public interest.
The fact that the story as a whole might be in the public interest does not provide an excuse to throw in confidential details that are merely juicy.

Do the same rules apply to the revelation of government documents?

No. The publisher doesn’t have to prove that the disclosure is in the public interest. Instead, the government will have to prove that it’s in the public interest for them to be kept secret – that is, that revealing them will actually cause harm. This is because it’s generally in the public interest to be able to discuss, review and criticise government action.

This can become a balancing act: will the harm caused to the conduct of the government by allowing disclosure outweigh the benefit to the public in knowing it? Courts are fairly ready to find that disclosures by intelligence agents or diplomatic
staff will impair the functioning of government and therefore hurt the public interest. Similarly, they are likely to be sympathetic to arguments that revelations that impair trust in key government staff , or hamper commercial or policy-making activities will cause public harm.