Confidential Information

Confidential Information
Cameron Stewart

The obligation Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 213: If a defendant is proved to have used confidential information, directly or indirectly obtained from a plaintiff, without the consent, express or implied, of the plaintiff, he will be guilty of an infringement of the plaintiff’s rights.

What is confidential information?
the myriad ways obligations of confidence The phrase is best viewed as a term that covers information that is subject to an obligation of confidentiality. What sorts of relationships give rise to obligations of confidence? Confidences arise in three sorts of relationships: private confidences, confidences relating to government secrets, and commercial confidences.

The origins of the action for breach of confidence
Property origins – Franklin v Giddins [1978] Qd R 72 Krueger Transport Equipment Pt Ltd v Glen Cameron Storage [2008] FCA 803 OBG Ltd v Allan [2008] 1 AC 1 Contract origins – Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 Seager v Copydex Ltd [1967] 2 All ER 415 Ministry of Defence v Griffin [2008] EWHC 1542

The origins of the action for breach of confidence
Tort origins – economic torts or fusion fallacy? Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457 Mosley v News Group Newspapers Ltd [2008] EWHC 177 Human rights? Unjust enrichment?

Equitable origins in conscience
Like most heads of exclusive equitable jurisdiction, its rational basis does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 437–8 per Deane J

The modern doctrine of breach of confidence
Coco v A N Clark (Engineers) Ltd Coco designed a moped He approached Clark about manufacturing it Coco disclosed the design Negotiations failed Clark later produced the Scamp which Coco claimed was part of his design Megarry J held that while there may have been a duty of confidence that there was not evidence to support a claim that the design was Clark’s or that Clark’s design was original enough to be confidential

The modern doctrine of breach of confidence
Coco v A N Clark (Engineers) Ltd, Megarry J : In my judgment, three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene MR in the Saltman case on page 215, must ‘have the necessary quality of confidence about it.’ Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.

Information that has a ‘confidential quality’
Secrecy and the public domain Lennon v News Group Newspapers Ltd [1978] FSR 573, John Lennon failed to prevent his former wife from publishing secrets of their married life, on the basis that he had himself published information on the topic.

Information that has a ‘confidential quality’
Transitory publication - a Chinese pop star was successful in restraining the publication of an embarrassing video tape on the Internet, even after a verbal account of the contents had been published in a Hong Kong newspaper Kwok v Thang [1999] NSWSC 1034 G v Day [1982] 1 NSWLR 24

Australian Football League v Age Company Ltd (2007) 15 VR 405
3 AFL players who had tested positive to drugs were identified on an internet discussion forum. An electronic newspaper article had also named the players to a limited group of subscribers for about 5 hrs. A further publication of one of the player’s names had occurred when a phone caller named the player on the ‘Fox Footy’ television program. Regardless, Kellam J found that the information had still not yet fully entered the public domain and remained confidential. A permanent injunction was ordered on the release of the player’s identities.

Information must be specific
O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310 Komesaroff had created a unit trust deed as a product to sell with his partner O’Brien Later the partnership dissolved and O’Brien kept using the deed. High Court found breach of copyright (ownership had not passed to the parnership) but not breach of confidence

Information must be specific
Mason J: Plainly enough, in the light of the findings of the primary judge and the evidence, there is very little, if anything, in the documents mentioned in pars. (1) and (2) above that can constitute confidential information. Generally speaking the contents of the unit trust deeds and the articles of association were matters of common knowledge. Information may be categorized as public knowledge though only notorious in a particular industry or profession...Only those improvements evolved by the respondent could give rise to a claim for relief for breach of confidence. ...It is at this point that the respondent has consistently failed to identify the particular contents of the documents which he asserts constitute information the confidentiality of which he is entitled to protect. The consequence is that he has failed to formulate a basis on which the court could grant him relief on the assumption that some part or parts of the documents constitute confidential information.

Publication does no destroy to right to sue for the original breach
Johns v Australian Securities Commission (1993) 178 CLR 408 John was examined by the ASC in a private and confidential way about the collapse of the Tricontinental Group. The examination transcript was provided to a State Royal Commissioner privately, and then later tended Copies were given to the media Could Johns get an injunction? No

Publication does no destroy to right to sue for the original breach
Gaudron J: No matter what the consequences of the tender of the transcripts in the proceedings of the Royal Commission and no matter whether regard is had to the actual consequences of that tender or the consequences that might have been, it does not follow that the tender brought the ASC's obligation of confidence to an end. If the question is approached from the perspective of the general law of confidence, it seems that publication, no matter how extensive and no matter whether by third parties or by the person who owes the primary obligation, does not necessarily extinguish an obligation of confidence.

Personal information Prince Albert v Strange

Personal information marital and defacto relations
Giller v Procopets sexual preference and activity Stephens v Avery A v B (a company) [2002] 2 All ER 545 Theakston v Mirror Group Newspapers Ltd [2002] EWHC 137 Mosley v News Group Newspapers A v B plc [2003] QB 195 Brown v Associated Newspapers Ltd [2008] QB 103

Personal information Diaries Medical history Witnesses and informants
Prince of Wales v Associated Newspapers McKennitt v Ash [2008] QB 73 Medical history X v Y [1988] 2 All ER 648 Campbell v MGN Ltd [2004] UKHL 22. Witnesses and informants Venables v News Group Newspapers Ltd [2001] 1 All ER 908 Rogers v TVNZ [2007] NZSC 91 Cultural and religious information Foster v Mountford & Rigby Ltd Church of Scientology of California v Kaufman [1973] RPC 635

Legal information -Prince Jefri Bolkiah v KPMG[1999] 2 AC 222
KPMG audited the Brunei Investment Agency (BIA) when it was chaired by B. B was later removed from his position B had also retained KPMG personally wih other litigation which gave them access to his personal financial information Later KPMG was asked by BIA to do further work. KPMG accepted and set up a Chinese wall

Prince Jefri Bolkiah v KPMG[1999] 2 AC 222
HofL finds that KPMG should be injuncted There was no absolute rule that a solicitor could not act in litigation against a former client, but that the solicitor might be prevented from doing so if it were necessary to avoid a significant risk of disclosure or misuse of the confidential information of a former client. KPMG accepted that an accountant who rendered litigation support services of the type provided to B fell to be treated in the same way as a solicitor. The court's jurisdiction to intervene on behalf of a former client was based on the protection of confidential information and the duty was to keep the information confidential, not simply to take reasonable steps to do so

Kallinicos v Hunt [2005] NSWSC 1181
Solicitor had acted for a partnership which had become dissolved – but no real chance that solicitor had any confidential information – should he be restrained? Yes – Brereton J

During the subsistence of a retainer, where the court’s intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court’s jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests [Prince Jefri]. · Once the retainer is at an end, however, the court’s jurisdiction is not based on any conflict of duty or interest, but on the protection of the confidences of the former client (unless there is no real risk of disclosure) [Prince Jefri]. ·After termination of the retainer, there is no continuing (equitable or contractual) duty of loyalty to provide a basis for the court’s intervention, such duty having come to an end with the retainer [Prince Jefri; Belan v Casey; Photocure; British American Tobacco; Asia Pacific Telecommunications; contra Spincode; McVeigh; Sent].

· However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice [Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Newman v Phillips Fox; Mitchell v Pattern Holdings; Spincode; Holborow; Williamson v Nilant; Bowen v Stott; Law Society v Holt]. Prince Jefri does not address this jurisdiction at all. Belan v Casey and British American Tobacco are not to be read as supposing that Prince Jefri excludes it. Asia Pacific Telecommunications appears to acknowledge its continued existence. ·The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice [Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Holborow; Bowen v Stott; Asia Pacific Telecommunications].

· The jurisdiction is to be regarded as exceptional and is to be exercised with caution [Black v Taylor; Grimwade v Meagher; Bowen v Stott]. · Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause [Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen v Stott]. · The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief [Black v Taylor; Bowen v Stott].

Commercial information
Trade secrets or know-how? Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd (1) the extent to which the information is known outside of his business; (2) the extent to which it is known by employees and others involved in his business; (3) the extent of measures taken by him to guard the secrecy of the information; (4) the value of the information to him and to his competitors; (5) the amount of effort or money expended by him in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others.

Faccenda Chicken Ltd v Fowler 1.trivial information, which is publicly available or so obvious that it cannot be protected; 2.information that must be treated confidentially until the termination of employment, whereupon it becomes part of the ex-employee’s collective skill, knowledge and ability; or 3.highly confidential trade secrets, which will be protected by the courts even after the termination of employment.

Del Casale v Artedomus (Aust) Pty Limited [2007] NSWCA 172 . The extent to which the information is known outside the business. 2. The extent to which the trade secret was known by employees and others involved in the plaintiff’s business. 3. The extent of measures taken to guard the secrecy of the information. 4. The value of the information to the plaintiffs and their competitors. 5. The amount of effort or money expended by the plaintiffs in developing the information.

6. The ease or difficulty with which the information could be properly acquired or duplicated by others. 7. Whether it was plainly made known to the employee that the material was by the employer as confidential. 8. The fact that the usages and practices of the industry support the assertions of confidentiality. 9. The fact that the employee has been permitted to share the information only by reason of his or her seniority or high responsibility. 10. That the owner believes these things to be true and that belief is reasonable. 11. The greater the extent to which the “confidential” material is habitually handled by an employee, the greater the obligation of the confidentiality imposed. 12. That the information can be readily identified.

Hodgson JA [W]here the confidential information is something that is ascertainable by enquiry or experiment, albeit perhaps substantial enquiry or experiment, and the know-how which the ex-employee is clearly entitled to use extends to knowledge of the question which the confidential information answers, it becomes artificial to treat the confidential information as severable and distinguishable from that know-how; and in that kind of case, courts have tended not to grant relief.

Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21
Telstra was alleged to have accessed Optus’ confidential information regarding its traffic information Claim brought in confidence, contract and trade practices Clause 16 said: Save to the extent that another provision of this agreement expressly provides for (or expressly excludes or limits) a remedy, a liability or a form of compensation in relation to an act, omission or event, this clause 16 shall regulate the liability (whether arising in contract, in tort, under statute or in any other way and whether due to negligence, wilful or deliberate breach or any other cause) of a party to each other party under and in relation to this agreement and in relation to any act, omission or event relating to or arising out of this agreement. Trial judge found that equitable claim failed because the contract covered the field and excluded equity

Optus Networks Pty Ltd v Telstra Corporation Ltd [2010] FCAFC 21
Full Court allowed appeal The claims in equity did not cut across the agreement as the remedies requested (an account) were allowable under the contract The contract could not be taken to have excluded equity so it was available on election

Government secrets Commonwealth v John Fairfax & Sons (1980) 147 CLR 39 JFS were going to publish a book which contained government documents on sensitive issue such as the Indonesian invasion of East Timor, American bases in Australia, the presence of the Soviets in the South pacific, the ANZUS treaty and Australia’s support for the Shah of Iran. Extracts were to be published in the Age and the SMH The Australian government sought an injunction on grounds of breach of confidence and breach of copyright

Government secrets Mason J (sitting alone) – found that an injunction could only be granted if the government proved that publication would harm the public interest: The court will not prevent the publication of information which merely throws light on the past workings of government, even if it be not public property, so long as it does not prejudice the community in other respects. Then disclosure will itself serve the public interest in keeping the community informed and in promoting discussion of public affairs. If, however, it appears that disclosure will be inimical to the public interest because national security, relations with foreign countries or the ordinary business of government will be prejudiced, disclosure will be restrained. There will be cases in which the conflicting considerations will be finely balanced, where it is difficult to decide whether the public's interest in knowing and in expressing its opinion, outweighs the need to protect confidentiality Result – not enough evidence of harm to public interest NB injunction was granted on copyright grounds

Government secrets Commonwealth v John Fairfax & Sons, Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd

Government secrets Semi-govt? British Steel Corp v Granada Television Ltd [1981] AC 1096 Esso Resources Ltd v Plowman (1995) 183 CLR 10 at 32 Soldiers? ‘R’ v Attorney-General [2003] UKPC 22 Ministry of Defence v Griffin [2008] EWHC 1542

The duty or obligation of confidence
Coco v A N Clark (Engineers) Ltd Express Obligation Implied Obligation Hitchcock v TCN Channel Nine Pty Ltd (No 2) [2000] NSWCA 82. Unsolicited communications Misappropriation of information Eavesdroppers Third parties

Establishing a breach The test which has found widespread acceptance is whether or not the information was disclosed for a limited purpose. If the information was disclosed for a limited purpose, the confidence crystallises around that limited purpose. The confidant will be bound by an obligation the content of which is not to use or disclose the information for any purpose other than the limited one for which the information was imparted. - F Gurry, ‘Breach of Confidence’ in P Finn (ed), Essays in Equity, 1985.

Establishing a breach Smith Kline and French Laboratories (Aust) Ltd v Secretary, Dept of Community Services & Health Whether one adopts the ‘reasonable man’ test suggested by Megarry J or some other, there can be no breach of the equitable obligation unless the court concludes that a confidence reposed has been abused, that unconscientious use has been made of the information

Establishing a breach R v Department of Health; Ex parte Source Informatics Ltd The Court of Appeal found that the pharmacists would not breach confidence if they supplied anonymised information, even though this went beyond the confider’s purpose in supplying the information. The confider’s purpose was said to be irrelevant when the information was anonymous

Establishing a breach Detriment?

Defences Public interest expose dangers to public safety or health
Hubbard v Vosper W v Edgell Lion Laboratories Ltd v Evans Woodward v Hutchins McKennitt v Ash [2005] EWHC 3003 Richards v Kadian [2005] NSWCA 328

Defences Forced disclosure Delay Clean hands
Campbell v Mirror Group Newspapers Ltd Australian Football League v Age Company Ltd (2007) 15 VR 405 Change of position

Remedies Injunctions The springboard doctrine Delivery-Up
Equitable compensation Harris v Digital Pulse Pty Ltd Giller v Procopets Account of profits Attorney-General (UK) v Blake Constructive trusts

The future — rights to privacy?
No right of privacy Victoria Park Racing & Recreation Grounds Co Ltd v Taylor Australian Consolidated Press Ltd v Ettingshausen Kaye v Robertson (1991) FSR 62

Developments in New Zealand and England
Bradley v Wingnut Films [1993] 1 NZLR 415 Hosking v Runting [2004] NZCA 34 Douglas v Hello! Ltd

MAX MOSLEY v NEWS GROUP NEWSPAPERS LIMITED

SIR ELTON JOHN v ASSOCIATED NEWSPAPERS LTD

DAVID MURRAY (by his litigation friends NEIL MURRAY and JOANNE MURRAY) v BIG PICTURES (UK) LIMITED

Super and Hyper injunctions?
ETK v News Group Newspapers Ltd [2011] EWCA Civ 439, ETK was a famous person in the entertainment industry who had had an affair in the past with a co-worker, X. The affair was known to ETK’s wife and colleagues, but not his children. Later X was sacked and the News of the World wished to publish the story of her sacking. The Court of Appeal found that the information had not entered the public domain even though it was known by ETK’s colleagues. Moreover the balancing exercised with Article 10, was in favour of an injunction, as while there was value in freedom of speech it had to be weighed against the rights of privacy of ETK, his wife and X, and the rights of ETK’s children not to be subject to teasing and ridicule. In the instant case, the Court of Appeal found that the benefits of free speech were wholly outweighed by the harm that would be done through the interference with the rights of privacy of all those affected.

OPQ v BJM [2011] EWHC 1059 (QB), an unnamed TV personality was able to seek an injunction contra mundum (‘against the world’) to prevent publication of photographs of him/her having sex that were being used to blackmail him/her. Jeremy Clarkson successfully, for a time, gagged his ex-wife’s claims that they had had an affair after he was remarried: AMM v HXW [2010] EWHC 2457 (QB). In TSE v News Group Newspapers Ltd [2011] EWHC 1308 (QB), an English professional footballer gagged publication of details of an extramarital affair. In Terry v Persons Unknown [2010] EWHC 119 (QB), Premier League footballer and English captain John Terry unsuccessfully sought a super-injunction to prevent publication of allegations that he had a sexual relationship with the wife of teammate and fellow international, Wayne Bridge. Tugendhat J held that there was insufficient evidence of a threat to publish the information.

Manchester United’s living legend Ryan Giggs sought a super-injunction to prevent publication of details of his affair with model Imogen Thomas, after he alleged that she asked for money to keep her story quiet . Justice Eady granted an injunction in CTB v NGN Ltd [2011] EWHC 1232 (QB). Eady found that Giggs did have an expectation of privacy given the details were of an intimate and sexual nature. Eady J found that there was no public interest in ‘kiss and tell stories’ Lord Neuberger, Report of the Committee on Super-Injunctions: Super-Injunctions, Anonymised Injunctions and Open Justice 2011,

Super and Mega injunctions?

Australia? Bathurst City Council v Saban
Kwok v Thang [1999] NSWSC 1034 Donnelly v Amalgamated Television Services Pty Limited (1998) 45 NSWLR 570 Australian Broadcasting Corp v Lenah Game Meats Pty Ltd

Confidential Information

Similar presentations

Presentation on theme: "Confidential Information"— Presentation transcript:

Similar presentations

About project

Feedback

Log in

Auth with social network:

Confidential Information

Similar presentations

Presentation on theme: "Confidential Information"— Presentation transcript:

Similar presentations

About project

Feedback