It is undeniable that confidential or secret information may be extremely valuable to a person or company who possesses it. Whether the information relates to your business or commercial dealings (also known as “trade secrets”), personal affairs or even the government issues, you may (as the ‘owner’) set out who may use the information and under what conditions. This article will discuss what constitutes a breach of confidence.

How to establish Breach of Confidence

Simply put, you will need to prove all of the following three elements:

  • Information must have to be ‘confidential’

To be protected, the information must not be something which is public property or known to the public. Essentially, as long as the information is not in the public domain, it will satisfy this first requirement. This is otherwise known as ‘relative secrecy’. If the information is not in the public domain, it does not matter whether the information itself is not important or valuable. It may also cover an idea that has not been developed yet or an invention that has not been made yet. It must also be noted that the recipient of the information may not use it as a “springboard”, meaning he or she cannot misuse it for his or her own benefit.

  • The information must have been communicated in circumstances where there is ‘an obligation of confidence’

The next requirement will be made out if, when the information was communicated, a reasonable person would have understood it to be confidential. No explicit communication is needed per se, especially if the parties already have a personal relationship E.g. husband and wife. Therefore, an individual who gets the information while in the service of another may owe a duty of confidence to the other.

  • The use of the confidential information caused a detriment to you

The final requirement that you need to prove in order for your claim for breach of confidence to succeed is to demonstrate that the perpetrator has misused the information so as to amount to “unconscientious” use. Innocent misuse is also sufficient to satisfy this element since it is a form of subconscious plagiarism.

Third parties and Strangers liability

Third parties may be liable for using or disclosing confidential information. Once the third party has actual or constructive knowledge of the confidence, liability may arise. For example, if Mary is an employee of Coca Cola and found out their secret recipe and told Bill about it. If Bill goes on to disclose the information, knowing it was confidential, he will also be liable for breach of confidence.

Defences

Before you bring your claim against someone, you have to make sure there is no valid defence for breach of confidence. As such, it may be a defence if disclosing or publicising the information is justified. Generally, disclosing the relevant information is justified if it is a threat to public health/safety or where it is in the public interest to do so. In any event, a defence is only valid if the information is disclosed to the ‘proper authorities’. The police or regulatory body are common examples. Finally, the disclosure of confidential information may be valid if it was ordered under the government or by court order for discovery.

Take-aways

Having your confidential information disclosed for the benefit of another is a serious intellectual property offence. Essentially, the take-aways from this article are that you must prove all of the following requirements:

  1. The information must be ‘confidential’;
  2. It must have been communicated based on a ‘confidential obligation’; and
  3. It must have caused you detriment.

You must note that there are defences if it poses a threat to the public or it is ordered by the court or government.

Conclusion

If you think someone has committed a breach of confidence against you and would like to discuss your situation with one of our specialist IP lawyers, please complete the form or give us a call. We will then assess your needs free of charge and provide a fixed-fee quote if relevant.

Lachlan McKnight

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