Breach of Confidence

Outline of proposed paper.

This paper answers the question by addressing breach of confidence and misuse of information by dividing the paper into three core sections. Firstly by discussing the early approaches by the courts in breach of confidence the paper can identify the road to which the courts developed the tort of misuse of information as an off shoot from breach of confidence. By establishing the principles through which breach of confidence was established a cross comparator can happen when the tort of misuse of information is being discussed. By examining the early jurisprudence on the breach of confidence it will show how the early roots of the breach of confidence focused on commercial relationships into governmental secrets and eventually into individual privacy. The key development of individual rights can be attributed to the advancement of human rights principles over the past six decades. The final section of the paper will focus on drawing conclusions from the courts approach to the breach of confidence identifying how the modern approach of the tort of misuse of private information draws parallels with the old law on breach of confidence. Breach of confidence; private

information; privacy; misuse of information; human rights

1.0 Introduction:

It has been argued by many academics including Carty that in a line of recent jurisprudence an action for the breach of confidence stands at a watershed. [1] Breach of confidence was traditionally founded upon the unauthorised use of information of a confidential nature when a defendant was considered to be under a duty of confidentiality. [2] Although the foundational case of Prince Albert v Strange [3] concerned the personal information between husband and wife, the core focus of the law on breach of confidence has been directed towards commercial relationships which give rise, either expressly or impliedly, to a duty of confidentiality. [4] In cases which did not involve commercial matters the courts focused their attention on how the personal information was parted to determine whether a duty could be established. [5] It can be submitted that the traditional law of breach of confidence centred upon a belief that in order to succeed in an action for breach of confidence, there was the necessity of disclosing information of a sensitive confidential nature which was protected either in a contract or constructed from the parties dealings giving rise to a confidentiality duty. The early development by the courts to approaching breach of confidence was to focus on whether the wrongful taking of information or the stumbling across information which was clearly confidential could come within an action for a breach of confidence.

In Attorney General v Guardian Newspapers Ltd (No. 2) [6] it was found by Lord Goff that where individuals took confidential information which was not necessarily the subject of express or impliedly confidentiality, an action in breach of confidence could be founded. A duty of confidence would arise when confidential information comes into of someone who either knew the information was confidential or had agreed that it would remain confidential and in all the circumstances of the case the courts should preclude disclosure of that information. [7] This early approach by the courts represented a gradual move towards protecting information and its misuse. This paper will focus on how the courts moved within breach of confidence to protect the misuse of private information. The paper will be composed of three sections which will deal specifically with the approach of the courts in breach of confidence. It will then progress to deal with the more modern approaches employed by the courts within the last ten years towards protecting private information with a focus on the change from a commercial focus to a more human rights centred framework. The final section of the paper will draw together the previous sections in examining the substantial development of the old law of breach of confidence into a tort of misusing private information.

The paper shall consider that whilst the UK does not have a specific tort designed to protect privacy, the law over the past decade has moved towards protecting particular aspects of privacy and in specific the misuse of private information. The bigger question posed by considering whether there is a tort of the misuse of information is that the UK civil law lacks protection for privacy generally. The approach in the UK has been to protect specific aspects of privacy focusing almost exclusively on the misuse of private information. The discussion of the case law will show that four main types of cases are engaged within breach of confidence: (1) personal confidences, (2) trade secrets, [8] (3) artistic and literacy confidences [9] and (4) state secrets. [10]

2.0 Breach of Confidence – the early approaches of the courts:

Gurry identifies that the legal notion of an enforceable confidence originated within pre-defined relationships premised upon either an express or an implied confidentiality clause. [11] Therefore the primary cause of action within breach of confidence was within the law of contract and later in the law of equity. However, tort played two roles within breach of confidence, firstly in protecting the misuse of information and secondly it provides a number of additional remedies to the wronged party. Some early academics argued that the role tort played within the action for breach of confidence was sufficient to ground a new tort altogether. [12] However, considering the approach of the courts within the jurisprudence it can be argued that the UK does not yet have a tort specifically protecting privacy but rather the haphazard approach by the courts in establishing an incomplete and incidental protection of privacy has created protection for specific aspects including the use of private information. [13]

The approach of the courts gradually moved from focusing on the express or implied terms to considering the context not only of how the private information was obtained but also how the private information was being used. It must be noted, however, the courts have shown in their early jurisprudence a sheer reluctance to develop a tort specific to protecting privacy. Warren and Brandeis argued in 1890 for the right to privacy and protection from an intrusion into private life which merited a framework within which individuals could be afforded a right to privacy. [14] Whilst Warren and Brandeis have been acknowledged as being key influential academics in the development of the right to privacy in the USA, it can be argued on the basis upon which the UK case law has continued to develop, the UK’s approach takes an incomplete approach to privacy protection. [15]

The approach of the courts in the early to mid-1990s centred upon determining how the private information came into the party who either disclosed or was seeking to disclose it. In Kaye v Robertson [16] the courts were willing to allow the protection of breach of confidence by granting an injunction stopping the printing of malicious falsehood. However, whilst the courts allowed the injunction, it was the extent of the injunction which was more discerning. The court still allowed for the printing of the story but only placed limits on the actual falsehood within the story which highlighted the unwillingness of the courts to protect privacy in general terms and only to focus on the specific misuse of the information in creating a false story about the claimant. In direct contrast to a similar case in the USA, in Barber v Times Inc [17] the courts went further than just protecting the falseness of the private information into providing full protection for the individual in granting a complete restraining injunction preventing the story in its entirety. In Hellenwell v CC Derbyshire [18] it was held that were a defendant had taken a photograph of someone engaged in a private act, then the law would consider its publication within the breach of confidence on a parallel with stealing a letter or a diary. [19] The courts developed their case law away from requiring a prior existing relationship to allowing breaches of confidence in cases without the need for an express or implied confidentiality clause, allowing cases to succeed in equity. [20] In Wainwright v Home Office [21] the House of Lords considered the impact of the Human Rights Act 1998 (HRA) on the judicial remedies for available for the invasion of privacy. The House of Lords held that the right of privacy was a value underlying the law but not a principle within which an individual could rely upon taking an action in law.

In Campbell v MGN Ltd [22] it was stated by Lord Nicholls that a cause of action for breach of confidence had moved from the constraint for the need for a prior contractual relationship to the imposing a confidence where a party came into private information which was known to ‘be fairly and reasonably regarded as confidential’. [23] Lord Nicholls also asserted that the labelling of the cause of action as a ‘breach of confidence’ was unhelpful and awkward as the label inferred the need to establish a duty of confidence and in most cases information about someone’s private life would not necessarily be confidential but would be more akin to being considered ‘private’. [24] Therefore, he sought to establish that as the breach of confidence law evolved in how it protected private information, the way in which it classified and categorised information should be modernised into the tort of misuse of private information to reflect the change in society from protecting confidence to addressing the actual need to protect private information.

It can be argued that the Campbell case encapsulates the change in approach from the courts examining the commercial relationship between the parties to examining the substance of misusing private information. [25] It can therefore be argued that after the House of Lords decision in Campbell the focus by the courts in dealing with an action will be on the actual misuse of the personal information. It represents the first case within which the House of Lords explicitly allowed the claimant’s rights to ‘informational privacy’ by employing the equitable remedy for breach of confidence. [26] The House of Lords unanimously agreed to allow the breach of confidence remedy to be employed in circumstances of private information even where no confidential agreement existed. In OBG ltd v Allan [27] it was asserted by Lord Nicholls that two distinct actions exist which involve breach of confidence, firstly privacy and secondly secret confidential information. The courts appeared to have developed two different frameworks for determining a cause of action in breach of confidence. Firstly, the private information cause of action tends to revolve around private individual information whereas secret confidential information tends to revolve around confidential information and commercial relationships. The distinction made by the courts in developing these two different frameworks for determining breach of confidence is fundamental as to whether a claim will be successful. The provide information cause of action tends to rely and borrow principles from human rights law whereas the secret confidential information will centre upon the traditional law principles in breach of confidence.

2.1 Privacy or Confidence – distinguishing features or similar terrain:

The jurisprudence on the law of breach of confidence shows that the legal protection of confidential information has a long pedigree in English law. [28] It can be argued that one of the biggest stumbling blocks within this area of law has been the courts reluctance to allow private information to form property within law. [29] Due to the fact that the courts would not classify or categorise private information as property left the courts in a limbo to develop principles which could allow a framework to establish if the private information should or should not be disclosed. The courts established that the more modern approach in dealing within commercial secret and confidential information and breach of confidence centred upon the three stage test developed in Coco v AN Clark (Engineers) Ltd [30] ensuring that:

a) There must be a ‘necessary element of confidence about it’,

b) The defendant must be under ‘an obligation of confidence’ and,

c) There must be an unauthorised use of that information. [31]

The three stage test reflected the courts approach in developing a systematic framework for reviewing cases to determine whether there was a breach of confidence. It is interesting to note that Lord Goff in Attorney-General v Guardian Newspapers (No2) found that there are three particular limiting factors within the commercial breach of confidence. [32] Firstly the framework would only apply to information which remained confidential as any information which did not remain confidential, breach of confidence would not be the appropriate remedy. Secondly the Coco principles would only apply to significant confidential information. Thirdly, the disclosure of information which can be deemed to be within the public interest may be still disclosed even if there it gives rise to a breach of confidence. The balancing of this public interest may involve balancing the right of free speech under Article 10 of the ECHR. However, this framework was centred primarily on business relationships, such as employee/employer, doctor/patient etc. The net effect of Campbell was to establish effectively a secondary tort; firstly the Coco case established the framework for identifying a breach of confidence in the commercial sense. Secondly the Campbell case interlinks the breach of confidence law with human rights law to encapsulate a differential approach when dealing with private information. The effect of merging human rights law with breach of confidence law creates a framework which is designed to balance the right to privacy and family life (Article 8 European Convention Human Rights) against the right to free speech (Article 10 of the European Convention on Human Rights). [33] Whilst it is possible to identity the tests from Coco which set the commercial tests for breach of confidence and to employ Campbell to establish the tests for a private breach of information, Lunney and Oliphant identify that the two can become entangled. [34] It is possible to have information which is both private and subject to a confidential obligation. [35] The next section will explore how the interconnection between human rights law’s right to privacy has intertwined within the tort of the misuse of private information.

3.0 Human Rights , Privacy and Confidence:

An important dynamic to the debate within which the tort of misuse of private information has developed is in situations where information is private to one person but may in fact be valuable to another. Human rights and in specific the balancing exercise between the competing right of free speech against the right to privacy has enabled the breach of confidence action to develop to reflect the changing values in society, to keep pace with changing technology and to take notice of evolving business practice. The human rights principles have allowed the courts to keep the law in time with changing technologies, changing business operations and techniques and reflect contemporary legal opinion. This type of circumstance emerged in the courts when ‘celebrities’ would have given photograph rights to particular magazines but prior to that magazine publishing the photographs, another magazine would somehow manage to ‘steal’ or get access to that information. In A v B Plc [36] Lord Woolf noted that even where no public interest is engaged by the case, there would still have to be a justification for breaching the free speech within Article 10 of the EHCR and the HRA 1998. [37] The courts approach in considering free speech was to allow journalists sufficient latitude to respect rational, fair and non-arbitrary determination of cases involving privacy and any restrictions should be no more than absolutely necessary. [38] It is interesting to note that the courts have shown a willingness to give a higher degree of protection to the disclosure of individual private information which would not normally enter the public domain. [39]

There have been a large number of cases where celebrities have been granted injunctions restraining the press from publishing key private information about their private life. In Beckham v MGN [40] the Beckham family were granted an injunction preventing the publication of a number of photographs showing the inside of their home. In Blair v Associated Newspaper Ltd [41] Cherie Blair was granted a sequence of injunctions preventing a former nanny exposing details of her private life being the Prime-Minister’s wife in 2001. These cases showed a willingness of the courts to allow some level of the right to privacy which was intertwined with the development of the breach of confidence law. In Holden v Express Newspapers Ltd [42] where a celebrity couple was able to obtain an injunction preventing the publication of photographs taken by an undercover photographer taken whilst they were on holidays. Other decisions included Venables v News Group Newspapers [43] where the courts were willing to grant an unprecedented range of injunctions preventing the media from publishing materials on the killers of Jamie Bulger. The defendant had attempted to publish the whereabouts and up-to-date pictures of the juvenile convicted killers upon their release from prison but the courts allowed an injunction under breach of confidence giving protection to the juveniles when they were released from prison. The cases show the willingness on the part of the courts to grant injunctions on the basis of a breach of confidence when the substance of an individual’s right to privacy has been interfered with unjustifiably. [44]

The Court of Appeal took an interesting approach in the case Douglas v Hello! Ltd [45] where the film stars Catharine Zeta-Jones and Michael Douglas had sold photograph rights to OK! magazine for a fee of £1 million for their wedding day. All reasonable steps were taken by the claimants to ensure the day would be kept secret from the general media so as to honour their contract with OK!. Before OK! managed to publish the photographs it came to the claimant’s intention that another rival magazine had plans to publish the photographs by managing to infiltrate the guest list and took undercover snapshots of the day. The claimants attempted to gain an injunction preventing the Hello! magazine printing the undercover photographs. In considering the action for breach of confidence the court found that as they were willing to openly trade their ‘right to privacy’ in exchange for money, they failed in their claim for breach of confidence. [46] However at a subsequent trial the claimants succeeded in claiming damages for the publication by Hello!. [47] In the former case the Court of Appeal accepted that the interference by Hello! was likely to be sufficient to be considered a breach of confidence but in fact withheld their right to privacy because of the commercial transaction they had with OK! which had the effect of them forgoing their rights of privacy here. [48] The Court of Appeal was clearly influenced by virtue of the fact they had already lost their right to privacy through their original contract with OK! which meant that the courts preferred that they assert their rights over the photographs through an alternative claim for damages. This shows an interesting perspective on the case law in that where an individual sells the content of their right to privacy the courts will still view it as a breach of confidence but as the individual has foregone their right to privacy the appropriate action is an action in damages. The second case then pursued by the claimants focus very much on the wrongful disclosure of confidential information which the claimants owned and controlled which was subject to a license to the OK! magazine.

The case law discussed so far highlights that the actions for breach of confidence are primarily concerned with ‘privacy’ with a traditional focus on the law concerning commercial relationships premised on the law of confidence where a duty of confidence was owed by a party and breached by the disclosing of that information. [49] The cases show that where actions are taken for breach of confidence they tend to centre on the disclosure of some commercial information or information of a financial value. Over time the jurisprudence and the approached employed by the courts show a move more towards an action in which Lord Nicholl in Campbell above refers to as a tort of the misuse of private information. It was noted by Lord Nicholl in Douglas v Hello! [50] that the law has developed two distinct torts one based solely on privacy connected with human rights whilst the other was solely on secret or confidential information which was connected with a breach of confidence. The cases from Campbell through until Douglas show that the courts have tended to allow protection of information through the right to privacy where the claimant does not intend the publication of the information. In particular the unreported cases involving the Beckhams and Cherie Blair show that were the intention of the individuals is not to part with the information to a public domain the right to privacy may be engaged within the tort of the misuse of information. However, the Douglas cases highlight that were that information is subject to a commercial transaction which was going to be made public, that information will forego any protection within the right to privacy. Whilst it will still constitute a breach of confidence, the right to privacy and the tort of the misuse of information will not be engaged.

4.0 Conclusion:

As Carty noted the law on breach of confidence is at a watershed in that the separation of private information from commercial secrets/confidential information have allowed the development of the tort of the misuse of private information to develop as an ‘off shoot’ of the breach of confidence action. In recent years the case law has shown an increasing judicial willingness to develop the action for breach of confidence to protect private interests. [51] It is the separation of commercial confidentiality and the development of the law into considering private information from the prospective of the right to privacy against the freedom of information. Traditionally, the law has focused on breach of confidence as being solely within commercial pre-defined relationships but the law has moved towards developing from the this constrained perspective to considering the intrusion into private life of individuals by the exposure of private information. It is evident in particular from the recent cases which have considered the human rights implications within the tort of the misuse of information that legal protection now exists not only for situations involving a breach of confidentiality but in circumstances where there is a significant intrusion into an individual’s private life by exposing private information. The landmark decision in Campbell, discussed above, accepted the principle that breach of confidence provided a remedy for the disclosure of private or personal information. This development has been facilitated by the courts borrowing and interchanging ideas and principles from Article 8 of the ECHR. [52]

The interesting point in the development of the law is that breach of confidence only seeks to protect the information which was protected either by the secret nature of the information or the subject to a confidentiality clause. Whereas the tort of the misuse of private information focuses much boarder to include that information which the defendant has published or is intending to publish this can be considered an intrusion into an individual’s private life. However, it can still be questionable as to whether the UK has a coherent approach to the protection of privacy in that, in many instances the courts have allowed the publication of stories so long as they do not contain any falsehoods about the individuals concerned. Rather than taking the alternative approach of preventing an entire publication the approach of the courts has been to prevent the specific offending part of an article. Similarly in the Douglas cases referred to above, when an individual has or has intended to make public the private information they will not be able to benefit from the protection of the right to privacy. It is also interesting to note that in McKennitt v Ash [53] Buxton LJ accepted that there was no tort of privacy as such, but a right to protect privacy had to be ‘shoehorned’ into an action for breach of confidence. [54] It evident that the protection afford to the right to privacy under Article 8 of the ECHR is somewhat wider in application than the breach of confidence action. Article 8 seeks to create a general right to privacy and family life whereas the right to protect private information is not only narrower in scope but also in application. This particularly highlighted in the case law in that in many instances the courts would only require the removal of the private information or opt for a restriction on that private information rather than opting to allow a full right of privacy and family life to the individual seeking protection.