The Duty of Confidence

What is the duty of confidence? The weight of legal authority and academic
commentary suggests that it is a distinct equitable duty rather than a fiduciary
duty, because the duty of confidence lacks the core fiduciary duty of altruism or
loyalty. As we will see from the case law, the circumstances in which a duty of
confidence will arise and the circumstances in which it will come to an end are
different from those that govern the fiduciary duty of loyalty.

To establish liability for breach of the duty of confidence, it must be shown that:

The material communicated had the necessary quality of confidence; and

That the communication was made in circumstances entailing a duty of

confidence; and

That there was an unauthorised use of the material (Coco v Clark ) Commented [b1]: Coco v Clark [1969] RPC 41

When does info have the necessary quality of confidence?

When the material is of limited public availability and of a specific character,

capable of clear definition. Where it is essentially private not public.

AG v Observer and Guardian Newspapers is a good example it concerned Commented [b2]: AG v Observer and Guardian Newspapers
[1992] 1 A.C
publication in English newspapers of extracts of the book Spycatcher (the
memoirs of Peter Wright, a former MI5 officer) both before and after the book
was published in the US. It was held that the Times newspaper was liable for
breach of confidence in respect of the extract published in the newspaper before
the book was published in the US (and so had to account for profits made from
publishing that extract) at the time of publication the material was still of
limited public availability. BUT there was no liability in respect of the articles
published in the Times and the Guardian after Spycatcher was published in the
US because the duty of confidence was extinguished once the info was in the
public domain.
Campbell v MGN the House of Lords held that the Daily Mirror was in breach Commented [b3]: Campbell v MGN [2004] UKHL 22

of confidence for publishing an article about the model Naomi Campbell being
a drug addict and seeking treatment through Narcotics Anonymous
accompanied with a photo of her attending a Narcotics Anonymous meeting.

Held -- The court stated that the underlying question in all cases where it was
alleged there had been a breach of the duty of confidence was whether the
information that was disclosed was private and not public. In the instant case,
no distinction was to be drawn between the details of the claimant's therapy
from NA and details of a medical condition or its treatment (Thus essentially
the info was treated as pertaining to a medical condition something which has
long been regarded as they type of info that is confidential). Those details were
private information which imported a duty of confidence.

What are the circs giving rise to a duty of confidence?

The duty can arise in the context of an existing relationship between Cl and D
for example it can arise in the context of employment or in the context of an
existing fiduciary relationship.

However, note that a duty of confidence can arise in other circs and doesnt
require a special relationship between Cl and D. The basic test, as outlined in
AG v Guardian is as follows:

If the circumstances are such that a reasonable man, standing in the shoes of the
recipient of the information, would have realised that the information was being
given to him in confidence, this should suffice to impose on him the equitable
duty of confidence. As Lord Goff explained, a duty of confidence arises when
confidential info comes to the knowledge of a person in circumstances where he
has notice, or is held to have agreed, that the information is confidential, with
the effect that it would be just in all the circumstances that he should be
precluded from disclosing the info to others.
Lord Goff stated I realise that, in the vast majority of cases, in particular those
concerned with trade secrets, the duty of confidence will arise from a
transaction or relationship between the parties - often a contract in which event
the duty may arise by reason of either an express or an implied term of that
contract. But it is well settled that a duty of confidence may arise in equity
independently of such cases; and I have expressed the circumstances in which
the duty arises in broad terms, not merely to embrace those cases where a third
party receives information from a person who is under a duty of confidence in
respect of it, knowing that it has been disclosed by that person to him in breach
of his duty of confidence, but also to include certain situations, beloved of law
teachers - where an obviously confidential document is wafted by an electric fan
out of a window into a crowded street, or where an obviously confidential
document, such as a private diary, is dropped in a public place, and is then
picked up by a passer-by. I also have in mind the situations where secrets of
importance to national security come into the possession. Commented [b4]: AG v Observer and Guardian Newspapers
[1992] 1 A.C at 658-659

What will amount to unauthorised use and how long will the duty last?

Breach of confidence may be constituted by the unjustified disclosure or use of

the info e.g. publication of an article or photo. When considering whether
there has been a breach it is important to check that the duty still applied when
the info was used. So, how long does the duty last? Basically for as long as the
info remains confidential - this is apparent from AG v Guardian (we saw how
there was no liability for publication of extracts after the info had already come
into the public domain) and is confirmed in the subsequent case AG v Blake, Commented [b5]: AG v Blake [1998] 1 All ER 833

which also concerned information being revealed by a former spy, George

Blake.

Lord Woolf explained in Blake that the duty to respect a confidence lasts so
long as the info remains confidential. It follows that, if the duty of confidence
happens to arise in the course of a fiduciary relationship such as employer and
senior employee, the duty will survive the termination of the
employment/relationship because it is not derived from it.
Giving effect to the HRA

In addition, when considering whether a claim for breach of confidence should

succeed, recent cases demonstrate that the Human Rights Act 1998 will be
taken into account by the court, particularly they will have regard to Article 8
(the right to privacy) but will also have regard to Article 10 (the right to
freedom of expression). Obviously those two articles can come into conflict
with each other when you are dealing with the publication of information about
a person. Thus in Campbell v MGN, it was stated that the effect of Arts 8 and
10 was that the right to privacy which lay at the heart of an action for breach of
confidence had to be balanced against the right of the media to impart info to
the public. Neither art 8 nor art 10 had any pre-eminence over the other in the
conduct of that exercise they were of equal value in a democratic society.
Naomi Campbell won the claim her right to privacy in relation to medical
treatment (essentially private info) outweighed the right of the press to freedom
of expression. Thus the HRA provides an extra dimension for consideration.