BREACH OF CONFIDENCE
Intro: it can be argued that A’s action of……is a breach of confidence. For a beach of confidence to be established, 4 elements must be proven (Optus v Telstra)
1. Specificity (O’Brien)
● Need to know not only what the information conveyed, but also identify what part of the information was not common knowledge with sufficient precision: (O’Brien)
o Distinguish between confidential information “know how” – accumulated knowledge, skill and experience: (Ocular Science)
▪ Objective test: can info fairly be regarded as a separate part of employee’s knowledge, which an ordinary honest man would recognise as the property (in loose sense) of employer, and not his to use as he likes?
o C.f. “more of less everything”: (Ocular Science)
2. Necessary quality of confidence (Coco v Clark)
● Information that was never confidential in nature, or is no longer confidential in nature, cannot be protected
o Cannot be public information or common knowledge (Lenah)
▪ C.f. public information assembled in a particular way, e.g. customer lists, the creation of TV program (Talbot)
o Consider whether info has lost its confidentiality through publication – a question of fact and degree (AFL v Age)
▪ Rumour and innuendo not enough for it to lose confidentiality
▪ Information might not be public knowledge unless it is accessible (AB v CD)
▪ C.f. carried out on private property does not necessarily equal confidential:(Lenah)
● Factors: (Heinemann)
o The information is confidential – the mere existence of a confidentiality clause is not conclusive but can be important evidence
o Extent to which info known inside/outside business o Amount of money/effort plaintiff put into creating info
o Application of skill/ ingenuity/ intelligence (Coco v Clark;Link 2) o Labour and costs required to develop
o The difficulty required to acquire/ duplicate o Secrecy: measures taken to keep the matter secret
▪ Whether this info in public domain o Security measures – e.g. locked in a safe (Franklin) o Value of the information (Franklin;Talbot;Link 2)
● Personal information
o Some info is inherently ‘confidential’ from the nature of the relationship between the parties (AFL v Age;Lord Ashburton v Pape)
o The information may be obviously secret:
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▪ E.g. Aboriginal religious ceremonies (Foster v Mountford & Rigby)
▪ Information re sexual lives (Argyll;Giller v Procopets;Wilson v Ferguson) o The quality of confidence might be implied via statute(Jane Doe v ABC)
o Market value of the info is irrelevant
o The mere fact that someone is famous does not famous/obscure does not make banal information such as weddings, valuable and capable of equity’s protection(Douglas v Hello!)
● Trade secrets
o Equity will protect secrets developed from the ‘ingenuity of the human brain’:Coco v Clark c.f. common practice
▪ Apply skills to an idea so it is no longer common practice (Talbot)
▪ Complication of public information (Link 2)
o Info can be a ‘trade secret’ (and confidential) even though it wouldn’t qualify for patent or copyright protection (Talbot)
▪ E.g. product formulae, customer list, bid pricing
▪ Substance over form: the mere labelling as trade secret is not necessarily sufficient
3. Acquisition (Coco v Clark)
● Objective test: whether the defendant knows or ought to know that info was imparted in confidence – in a confidential relationship + its secrecy is obvious (Coco v Clark)
o Giving– imparted in context of a confidential relationship
▪ Allows duty to be imposed on 3P (i.e., not confider or confidee) or indirect recipients
● Design was only provided to 3P to enable production – placed in their possession for a limited purpose (Saltman v Campbell)
▪ Can be multiple primary wrongdoers, as long as each knew or ought to have known that the information was confidential, and not theirs to use
▪ Info disclosed in business negotiations and only for that purpose (Talbot)
▪ Nudes sent with the intention for it to remain private (Wilson)
▪ Shared the information to anthropologist with no intention for it to be published (Foster)
o Taking– improperly or surreptitiously obtained impart an obligation to maintain confidence (Coco v Clark)
▪ Sex tape made without victim’s consent (Giller)
▪ Was suspiciously acquired knowing it to be a trade secret with the intention to use in commercial competition (Franklin)
o Blurting– obtained by another, and passed onto a third party – often a deliberate act
▪ No binding obligation of confidence if that info is blurted out in public (Coco v Clark)
● Info obtained via trespass then passed to 3P for publication (Lenah) o Wafting– accidentally obtained
▪ When an obviously confidential info is wafted, an obligation of confidence would be imported (AG v Guardian Newspaper)
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4. Unauthorised use (Coco v Clark)
● Intention to misuse is irrelevant, mere threat is sufficient, a breach will be found either:
o There is unauthorised use; or
o A threat to disclose the confidential info
● Even if it was originally obtained in circumstance of confidence, one will not be making unauthorised use if the info was obtained through one’s own endeavours, independent rediscovery or a public source (AB v CD)
● No permission to use that information at all
o When the information has been taken in a surreptitious manner, ANY USE will be considered a breach (Franklin)
o P explain how the information was improperly obtained and substantially used
● When some use is permitted
o If D’s use was beyond those conditions, D’s use will be considered a breach (Castrol) o If plaintiff placessomerestrictions on use,alternativeuses may not be unauthorized (Smith
Kline)
▪ C.f. if D did not know /ought to know of limited purpose of disclosure, his conscience will not be bound
▪ C.f. when D is a regulatory/government body and their use of the information was in prioritization of their statutory duty that involves a public interest (Smith Kline) o Intention is not conclusive
Detrimentis no longer necessary: c.f.Coco v Clarkbut is required regarding government secrets.
Defence
● Public interest can defeat the element of “necessary quality of confidentiality” (Kumar)(Kumar dicta), however is not a separate defence.
o Support a public interest defence (obiter inLenah Game Meats;Kumar) o Position re public interest defence is not settled nor clear (AFL v The Age)
● Iniquity defence (AB v CD)
o Distinguish between public interest public may be interested in (AFL v The Age) o 3 elements (AFL v The Age)
▪ Proposed disclosure will show the existence of or real likelihood of an iniquity that is crime, wrong, misdeed of public importance
▪ Public importance: must affect the community as a whole or affect public welfare
▪ P trying to prevent disclosure to a 3P who has a real/direct interest in redressing the iniquity
o Cannot plead your own iniquity to defeat the duty of confidence (Kumar)
▪ Kumar argued that the informant’s identity is not confidential as the information is about his own wrongdoing (it was
▪ an iniquity)
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