Breach of Confidence
You can ask our online solicitors for advice on breach of confidence using the question box on the front of our website or the following free legal advice guide may answer your questions.
When you exchange information between one or more parties in confidence, the person(s) receiving the information must respect your confidentiality. If they fail to do so you are entitled to pursue legal action under the existing breach of confidence law.
This legislation is a common law tort which is used between any individual or business and it is used in the civil courts. Typically, it is designed to protect sensitive, confidential or commercially viable information.
When information is shared ‘in confidence’ a layer of protection is added that prevents those receiving this information from sharing, using it to gain an unfair advantage or divulging the contents of a document. Breach of confidence is only applicable to the distribution of information that is deemed ‘commercially viable’.
It is important to establish what we mean by confidential information in the context of breach of confidence. If for example, certain information would not ordinarily be disclosed to the general public, this information should be treated as confidential in nature and handled with due care and attention. This may include information such as earnings for high profile individuals or personal information of customers.
There are three main categories of confidential information;
- trade secrets
- Government secrets
- private personal information
When a breach of confidentiality is being established and when assessing whether a piece of information is confidential, three things must apply;
- The value of the information
- Whether there is in existence a confidence obligation
- If the information has been accessed or used by an unauthorised person
Let’s take a look at each of these in a little more detail.
Value of the Information
There are certain pieces of information that are more valuable than others. For a piece of information to be confidential, it must be clear that it is in fact, confidential.
This could be achieved in many ways from a watermark across the pages of the document or a label on a printed or digital folder indicating that the contents are confidential. However, these are not the only instances where information can be classed as confidential and each case will be judged accordingly.
In situations where patents apply or designs are being registered confidentiality is absolutely essential because if this information was to become public knowledge before the patent or registration being granted, it would cause serious problems.
When sensitive or secret information is dealt with in a business setting, confidentiality obligations are usually enforced through an express condition contained within a contract between two or more parties.
Usually, these are called non-disclosure or confidentiality agreements and they are standard practice in many industries. If there are no obligations to keep any information shared between two parties confidential, there are certain situations when the duty of confidence is implied.
An example of this would be if you worked in an office that dealt with trade secrets or patents. It would be part of your job to keep the information that you see, use and access strictly confidential.
If you are provided with information to carry out a specific task and you only used the information for this purpose, that would be classed as authorised use of the information.
As an example, if you were given information to enter into a database and you did exactly that and didn’t share or disclose this information to another party that would be fine.
If, however you disclosed this information to a third party this would be classed as unauthorised use of the information and you could be found in breach of confidence.
Remedies for Breach of Confidence
There are several remedies that are available when breach of confidence occurs, and these include:
- The award of damages
- An obligation to deliver and destroy any materials that infringe confidentiality
- Account of profits
- Interdict – This will occur when there is a high risk that unauthorised disclosure will take place but where the information has not yet been shared
There may be instances where those found to have breached confidentiality can form an acceptable defence. This can be established when it is in the public interest to disclose the information.
However, assessing whether something is in the public interest is extremely difficult to determine as the courts will often take the view that information should always be kept confidential.
There are occasions when the courts may rule that information is suitable for public disclosure or a certain part of the information should be disclosed. This may occur when a court rules that information should be disclosed to the authorities.
Breach of confidence is serious, and it can have a significant and sustained impact on a business if crucial information falls into the wrong hands.
Businesses take an incredible amount of care to preserve their confidential information and as an employee it is your duty to fully comply with confidentiality guidelines.