When is information confidential?

The law of confidentiality covers a wide range of items of information that may be regarded as confidential in character, for example:-

  • Commercial and industrial matters;
  • Government and State secrets;
  • Confidences between husband and wife;
  • Confidences imparted to an employee from an employer;
  • Images (e.g. photographs).

Generally, information will be deemed to be confidential if it is not intended for the public domain.

When determining what information is confidential, the courts tend to apply an objective test and consider whether the reasonable man would expect information to be regarded as confidential. Information that is trivial or useless may not be granted protection under the law of confidence.

How do I protect confidential information?

One way to protect confidential information, and thus prevent it from being disclosed to the public, is to have Confidentiality Agreements in place prior to information being disclosed. Alternatively, often a confidentiality clause is placed in an Agreement, be it a research agreement, patent and know-how license, or a consultancy agreement.

In the case of employment, it is commonplace for employers to include a restrictive covenant within the contract of employment stating that employees must not disclose confidential information to third parties when leaving the employment. Such clauses must be reasonable.

In certain other cases a formal Agreement is not required. Taking the relationship of a solicitor and client for example, confidentiality is implied in the fiduciary nature of the relationship.

What should I do when there is a breach of confidence?

It is important to note that the law in Scotland and England in relation to confidentiality differs slightly. However, generally speaking, to successfully establish a breach there are three essential elements:

1. Information not in public domain – The information itself must have the necessary quality of confidence about it, i.e. generally speaking the information must not already be in the public domain;

2. Circumstances expect confidence – The imparting of the information must occur in circumstances importing an obligation of confidence; and

3. Unauthorised use of information – The information must be used in an unauthorised way so as to cause detriment to the person who has raised the action.

If all three elements are present, it is likely that a court action for breach of confidence will be successful.

What are the defences to breach of confidence?

One of the main defences to an action for breach of confidence arises when the defender can prove that disclosure is in the public interest. For example, the courts have refused to uphold the right to confidence if it would cover up a wrongdoing, such as a crime.

What are the remedies for breach of confidence?

The main remedies available for breach of confidence are:

  • Interdict (otherwise known as an Injunction in England);
  • Damages or account of profits; and
  • Delivery up of material containing the confidential information.

The principal remedy will often be interdict to ensure that the Confidential Information remains confidential. In these situations speed and effective lawyers with experience are essential.

How long will information remain confidential?

The duration of the obligation of confidence is different in every circumstance. This matter will usually be dealt with in a Confidentiality Agreement or Contract of Employment and will reflect a realistic and reasonable time. In certain other matters, for example in relation to a former member of the Security Service, the obligation can last a lifetime.

Recent Developments

The law of breach of confidence, although historically governed by common law, has recently been affected by various statutes as follows:

  • Human Rights Act 1998 – since this Act was introduced, an overlap between the law of confidentiality and the law of privacy (which is a positive right to privacy as opposed to a negative obligation not to disclose confidential information) has formed. This is particularly relevant where individuals are concerned. For example, in the case of Douglas -v- Hello! Limited 2004 EMIR 14, it was held that the laws of confidence could apply to circumstances that were personal and private (in this case the celebrity wedding of Catherine Zeta-Jones and Michael Douglas).
  • Data Protection Act 1998 – this Act contains provisions that have had a significant impact on the law of confidentiality and has affected the ways in which businesses and organisations hold and use certain information.
  • Freedom of Information (Scotland) Act 2002 – since this Act came into force on 1 January 2005, public authorities have had to very carefully balance the law of confidence with the obligation to provide information.

Taking into consideration the significant statutory influences on Confidentiality Law, it appears that the law of confidential information looks set to play a bigger role in our business and private lives in the years to come.

This information is intended to provide general guidance only. For more specific guidance, legal advice should be sought.