Privacy & Breach of Confidence

UNIVERSITY OF LUSAKA
SCHOOL OF LAW
L270 – MEDIA LAW
UNIT 5: PRIVACY & BREACH OF CONFIDENCE
George Mpundu Kanja
gmkanja@live.com
STRUCTURE OF THE PRESENTATION
• Introduction
• Background to the law
• Breach of Confidence
• Misuse of Private Information
• Defences
• Remedies for Breach of Confidence
INTRODUCTION
• The history of media law has witnessed a constant battle
between, on the one hand, the desire of society to be
fully informed of events and matters of interest and, on
the other hand, the need of the individual to be
protected against invasions of personal privacy and
damaging remarks which impact on such a person’s life.
• Thus in recent years the law of confidential information
has been increasingly used to prevent the media
disclosing information obtained from those who ‘leak’
secrets from organizations; and to publish personal
information.
INTRODUCTION
• The law of breach of confidence prevents the
publication of secret information given to or
obtained by a person in confidence, at the
instigation of the person to whom the confidence is
owed.
• The law can also be used to restrain a third party
who comes into possession of the information. For
example, where X tells Y something in confidence
and Y repeats it to a newspaper, X can restrain the
newspaper from disclosing the information.
INTRODUCTION
• Many different types of information can be
protected by the law, for example, trade secrets,
official secrets, medical records and details of
sexual relationships.
• The most important defence to an action for breach
of confidence is known as "public interest".
• This applies where the public interest in disclosing
the information outweighs the duty of confidence.
It involves a balancing exercise by the court.
INTRODUCTION
• The most common application of this defence
is in the disclosure by an employee of
wrongdoing by his or her employer.
• In such a case, the general duty of confidence
owed by the employee to the employer is
generally outweighed by the public interest in
the wrongdoing being disclosed.
BACKGROUND TO THE LAW
• The law of breach of confidence traces its
roots from the case of Prince Albert v Strange
(1849) where Prince Albert obtained an
injunction preventing publications of
drawings made by himself and Queen
Victoria, after unathorised copies of them
were made by someone on the staff of a
printer, from whom the Royal couple had
ordered some prints.
• The law of breach of confidence was further
considered in the case of Morison v Moat (1851).
• In that case Morison senior and Moat senior entered
a partnership to exploit Morison senior’s “invention”,
which was sold as “Morison’s Universal Medicine”.
• Morison senior gave the recipe of the medicine to
Moat senior under a bond not to reveal it to any
other person. Shortly before moat senior’s death he
appointed his son, the defendant, to succeed him in
partnership.
• Morison senior and his sons were led to
believe that Moat had not told the secret
recipe to the Moat, but he had. The
partnership eventually terminated and Moat
junior began to manufacture in accordance
with the recipe of his own account.
• The Morisons succeeded in obtaining an
injunction to restrain Moat.
• The case of Saltman Engineering Co Ltd v Campbell
Engineering Co Ltd (1948) 65 R.P.C. 203 laid the
foundations of modern form of the law of breach of
confidence.
• Saltman associated companies owned copyright in
drawings for a leather punch. On their behalf, a third
person, Monarch arranged for the defendant to
manufacture punches for them. It was alleged that in
implied breach of confidence the defendant used the
drawings to manufacture and sell its own punches.
• Lord Greene stated as follows:
• “… if two parties make a contract, under which one of them
obtains for the purpose of the contract or in connection with it
some confidential matter, then, even though the contract is
silent on the matter of confidence, the law will imply an
obligation to treat that confidential matter in a confidential
way, as one of the implied terms of the contract, but the
obligation to respect confidence is not limited to cases where
the parties are in contractual relationship …The information to
be confidential must, apart from contract, have the necessary
quality of confidence about it, namely, it must not be
something which is public property and public knowledge.”
BREACH OF CONFIDENCE
• The classic definition of breach of confidence
comes from the case of Coco v. A.N. Clark
(Engineers) Ltd (1969) RPC 41, in which Megarry J.
defined the breach of confidence as arising where:
• (1) the information disclosed or about to be
disclosed “has the necessary quality of
confidence” (or in other words, is information
that would be considered private rather than
public);
• (2) the information has been imparted in
circumstances which importing an obligation
of confidence; and
• (3) the defendant has made or intends to
make unauthorized use of the information.
• If all three elements are satisfied there will be
breach of confidence unless the defendant
can claim a defence.
• In other words, for information to be treated
as confidential and subject to protection by
the law of confidence it must meet the
requirements stated in the case of Coco v AN
Clark(Engineers) Ltd, namely:
• (i) Quality of Confidence
• (ii) Obligation of Confidence
• (iii) Unauthorised Use of Information
(i) Quality of Confidence
• Information will have the necessary quality of
confidence where it is of confidential
character.
• The courts apply an objective test in
determining whether information has a
confidential character: would the reasonable
man, in the position of the defendant, have
realised that the information he has in his
possession is confidential?
• The fact that the claimant passes on information to
another will be taken into account by the court in
determining whether the information is confidential
but the mere fact of such dissemination does not
automatically prevent an action in breach of
confidence.
• Thus, in Stephens v. Avery [1988] 2 All E.R. 477, a
newspaper carried a report that the claimant had
had a lesbian affair with the wife of a notorious
criminal.
• The newspaper obtained the information from
a friend of the claimant’s in whom the
claimant had confided.
• The court held that the fact that the claimant
had passed on the information to her friend
did not prevent her bringing an action
against the friend to restrain its further
dissemination.
• The latest test of whether the information is
confidential was also considered by the House
of Lords in the case of Campbell v. MGN
(2004), where Naomi Campbell sued the
Mirror over stories about her attending
meetings of Narcotics Anonymous.
• Lord stated as follows:
• “The underlying question in all cases where it is
alleged that there has been a breach of the duty of
confidence is whether the information that was
disclosed was private and not public … If the
information is obviously private, the situation will
be one where the person to whom it relates can
reasonably expect his privacy to be respected.”
• The law of confidence does not require information to be
completely secret in order to be considered confidential.
• Information will be protected provided that it is limited in the
scope of its availability.
• The information to be protected must not be in public
domain or public knowledge or a matter of public record.
• Information which is not readily available to the general
public is capable of protection, but once information becomes
publicly available or known by a substantial number of people
it will lose its confidential character.
• In Coco v AN Clark (Engineers) Ltd Megarry J. stated
that “however secret and confidential the
information, there can be no binding obligation of
confidence if that information is blurted out in public
or is communicated in other circumstances, which
negative any duty of holding it confidential.”
• Therefore, simply marking the document “Private
and Confidential” will not be considered sufficient
to make the document so marked qualify as
confidential if the information is in public domain.
• In Dalrymples Application, a manufacturer distributed
over 1000 technical bulletins containing information
about a new manufacturing process to members of a
trade association. The bulletins were marked
“CONFIDENTIAL” and contained a notice that the contents
of the bulletin should not be disclosed to non-members.
• The court refused to find that the information was
confidential in this case because it was felt that the
trade association had not taken sufficient steps to
ensure that the information could not be accessed by
non-members.
• In the case of Coco v. A.N. Clark it was stated
that the information must have some degree of
importance; hence the law will not protect the
confidentiality of trivial material.
• Examples of information which the courts have
held to be “obviously private” includes ideas for
commercial products, trade secrets, people’s
sex lives, health and medical treatment, diaries,
company finances and personal photographs.
 ideas for commercial products
• In Fraser v. Thames TV (1984), the claimant had
developed a proposal for a TV drama series, based
on the experiences of a pop group he had managed,
comprising three female singers. The idea was
discussed with the Thames management, producers
and writers, but was ultimately rejected. A little later,
however, the company made a series, called ‘Rock
Follies’, which was clearly based on the characters
and stories in Fraser’s proposal.
• He sued for breach of confidence, and evidence was given in
court that the discussions he had had with the company, in
which both sides were aiming to use the idea commercially,
would be regarded in the industry as creating an obligation
of confidentiality. His action was successful.
• In 2005, the author J.K. Rowling won an injunction preventing
publication of details of the plot of her forthcoming book,
Harry Potter and Half-Blood Prince. The injunction prevented
anyone who came into possession of the book or part of it
from disclosing any information about it to anyone.
 Trade secrets
• All businesses have trade secrets. Thus any confidential business
information that provides an enterprise with a competitive edge
may be considered to be a trade secret.
• These may include the manufacturing processes, techniques and
know-how, lists of customers, formulas for producing products,
personal records, financial information, manuals, ingredients,
business strategies, business plans, marketing plans, information
about research and development activities.
• The unauthorized use of such information by persons other than
the holder is considered unfair practice and a violation of the
trade secret.
 health and medical treatment
• In X (HA) v Y (1988), the News of the World discovered
that the two doctors working for the same health
authority had been diagnosed with AIDS. The paper got
its information from an employee at the hospital where
they were being treated. They published the facts of
the story and intended to do a follow-up naming the
doctors, but the health authority was granted a
permanent injunction preventing publication of the
doctors’ names or the places where they worked.
 company finances
• X Ltd v. Morgan Grampian (1991), an
unidentified source leaked information about a
company called Tetra to the trade magazine The
Engineer. The source said that the company was
having financial problems and had prepared a
business plan, a copy of which had gone missing.
• It was granted an injunction preventing
publication of the information.
• Similarly, in Camelot Group plc v. Centaur
Communications Ltd [1998] E.M.L.R. 1, the
claimant, the company which ran the National
Lottery, obtained an ex-parte injunction against
the publishers of Marketing Week preventing
them from publishing information contained in
unaudited accounts of the National Lottery
which had been forwarded to the defendant by
an unknown employee of Camelot.
 Personal photographs.
• Personal photographs have been held to be
confidential information and law of confidence
has been used to prevent the use of
unauthorised photographs.
• In Creation Records v. News Group Newspapers
(1997), a photo shoot was arranged for the cover
of an Oasis album, involving a white Rolls-Royce
in an empty swimming pool.
• There was heavy security around the set, but a
photographer doe the Sun Newspaper managed to
get unauthorised access to the area, and took some
shots which were similar to the one eventually
chosen for the album cover. The Sun Newspaper
published the picture and offered glossy posters of
the shot to readers for £1.99.
• The Sun Newspaper was taken to court by the record
company and the court found that publication was a
breach of confidence.
• Also in Douglas and Others v. Hello! Ltd and Others
[2003] the film star Catherine Zeta-Jones and
Michael Douglas sued Hello! Magazine for
publishing photographs of their wedding, taken
secretly by a photographer who had sneaked in the
wedding. The couple had sold exclusive rights to
pictures of the wedding to OK! Magazine, and so
banned all their guests from taking photographs at
the wedding, and put security provisions in place to
prevent the press from getting in.
• The Court of Appeal held that the photographs
were plainly taken on a private occasion and
disclosed information that was private, and
‘the intrusion by the photographer into the
private domain was itself objectionable’.
• Hello! Magazine argued that the pictures could
not be considered confidential material since,
rather than keeping them private, the couple
had sold the rights to OK! Magazine.
• However, the Court of Appeal said that the right of celebrities
to sell pictures of themselves was comparable to a trade
secret such as the formula for a drink or a design of a machine,
and was therefore protected by the law of confidentiality in
the same way.
• In Douglas and Another v. Hello [2007], the House of Lords
held that OK! also had a claim against Hello! Magazine.
• The Court stated that where information has a commercial
value, and competitors are aware that a publisher has paid for
exclusive rights to it, unathorised use of that information may
be a breach of confidence. Hello! was ordered to pay damages
of over £1 million.
(ii) Obligation of Confidence
• The second requirement in an action for breach of
confidence is that there must be obligation of confidence
which arises from the circumstances in which the
information was imparted.
• Classic examples of these kinds of circumstances would be
confidential would be where confidential information is
passed between lawyer and client, doctor and patient, priest
and parishioner.
• Other situations in which courts have held that an obligation
of confidence may arise include personal relationships,
Employer-employee relationship, government employees.
 personal relationships
• The law of confidentiality was first used to
protect revelations about private relationships
in the case of Argyll (Duchess) v Argyll, Duke of
Argyll [1967] Ch 302.
• The Duke of Argyll was prevented from
publishing details of his stormy marriage on
the grounds that married couples owed each
other a duty of confidentiality.
• The protection of confidentiality may be extended to

personal relationships outside marriage so long as they are
not short-lived or casual relationships.
• in A v B (2002) the footballer Gary Flitcroft tried
unsuccessfully to prevent publication of a story about his
extra-marital affairs.
• The Court of Appeal overturned an injunction which had
been previously granted, saying that ‘transient’
relationships could not contain the same element of
confidentiality as those between spouses or long-term,
committed partners.
• The court also pointed out that, as a
Premiership footballer, Mr. Flitcroft was
something of a role model, which meant that
there was a slight degree of public interest in
the truth about his behaviour being revealed.
• In addition the mistress in the case had a right
of freedom of expression, so her wish to tell
the story had to be weighed against Mr
Flitcroft’s wish for the story to be suppressed.
• In 2004, Lord Coe, the former athlete tried
unsuccessfully to obtain an injunction
preventing revelations about an extra-marital
affair he had had.
• The High Court said that the woman involved
wanted to tell the story, and her right to
freedom of expression outweighed his
privacy.
• In Barrymore v. News Group (1997), the comedian Michael
Barrymore was granted an injunction preventing publication
of details divulged by a man whom he had had a sexual
relationship with, while he was married.
• The court said that merely divulging the fact that the
relationship existed might not be breach of confidence,
especially as Michael Barrymore had already said publicly
that he was homosexual.
• However, going into details about what Barrymore had said
about private matters, such as his relationship with his wife,
as the defendant had done, ‘crossed the line’.
 Employer-employee relationship
• Some employment contracts contain a specific provision,
banning or prohibiting employees from revealing
information obtained as a result of their work.
• Most celebrities, for example, would include a clause in the
contracts of anyone working closely with them, such as
nannies or personal assistants, and such clauses are also
common in industries where trade secrets are important.
• In these cases, divulging information gained through work
would be a breach of confidence.
• In Archer v. Williams (2003), Lady Archer,

wife of the novelist Lord Archer, obtained an
injunction against her former personal
assistant, who had attempted to sell stories
about her to the national papers.
• There was a confidentiality clause in her
contract.
• Also in A-G v. Baker [1990], a former servant

of the royal family wrote a book entitled
Courting Disaster, about his work.
• His employment contract contained a
confidentiality clause, and because of this, the
Court of Appeal granted an injunction
preventing publication anywhere in the
world, at any time.
• However, the fact that an employment contract

does not contain a confidentiality clause does
not mean that there will be no breach of
confidence if the information is disclosed.
• By accepting an employment contract, all
employees take on an implied duty of ‘fidelity’
to their employer, which means they have an
obligation not to do anything which would
damage the employer’s interest.
• This duty means that information gained through

work is usually obtained in circumstances where an
obligation of confidence exists.
• Leaking it can therefore be a breach of confidence,
even after the person has left the job.
• In Tillery valley Foods v. Channel 4 (2004), an
investigative journalist took a job at a Tillery factory
where food was prepared for hospitals and other
public organizations.
• She secretly filmed various procedures which suggested that
the company’s hygiene standards were in doubt, for a
Channel 4 programme. Allegations based on the film were put
to Tillery for its comment, and it responded by seeking an
injunction, on the grounds that the information was obtained
in breach of confidence. Tillery’s lawyer agreed that the
disclosure of the information might be in the public interest,
but said that the court would need to balance that against the
company’s interest in not having it made public, and part of
the balancing act would involve giving the company an
effective right to reply, for which it would need both time and
access to material in the film.
• The held that this was not a case for breach
of confidence but of potential defamation.
The fact that the information was obtained
through an employment relationship did not
necessarily mean it was confidential.
• Government Employee
• The issue of government secrets raises important public
policy issues over and above those encountered in relation
to other types of confidential conformation.
• The preservation of secrets pertaining to national security
and international relations is balanced against issues of
free speech and open dissemination of news and current
affairs.
• Therefore the State Security Act, Cap 111 makes an offence
for any person to communicate certain information.
• Any person who has in his possession or under his control any
code, password, sketch, plan, model, note or other document,
article or information, which relates to or is used in a protected
place or anything in such a place, or which has been made or
obtained in contravention of the Act, or which has been entrusted
in confidence to him by any person holding office under the
Government, or which he has obtained or to which he has had
access owing to his position as a person who holds or has held
such office or as a person who is or was a party to a contract with
the Government or a contract the performance of which in whole
or in part is carried out in a protected place, or as a person who is
or has been employed under a person who holds or has held such
an office or was a party to such a contract, and who:
 uses the same in any manner or for any purpose
prejudicial to the safety or interests of the
republic; or
 communicates the same to any person other than
a person to whom he is authorised to
communicate it or to whom it is in the interests of
the republic his duty to communicate it or;
 fails to take proper care of, or so conducts himself
as to endanger the safety of, the same; or
 retains the sketch, plan model, note, document or
article in his possession or under his control when
he has no right or when it is contrary to his duty so
to do, or fails to comply with any lawful directions
with regard to the return or disposal of the same
• shall be guilty of an offence and liable on
conviction to imprisonment for a term of not less
than fifteen years but not exceeding twenty-five
years.
• Furthermore, the State Security Act prohibits the
communication of classified information.
• Therefore any person who communicates any
classified matter to any person other than a person
to whom he is authorised to communicate it or to
whom it is in the interests of the Republic his duty
to communicate it shall be guilty of an offence and
liable on conviction to imprisonment for a term not
less than fifteen years but not exceeding twenty-
five years.
• Besides the State Security Act the government
can use the law of confidence to protect their
secrets.
• In AG v. BBC [1987] the Government of UK
secured an injunction preventing broadcast of a
series of radio programmes called ‘My Country,
Right or Wrong’, because they featured
interviews with ex-members of the security
services, even though no secrets were revealed.
• AG v. Sunday Telegraph [1999], the Sunday
Telegraphy obtained a leaked information
from a report on a public inquiry examining
the unsuccessful police investigation into the
racist murder of a black teenager, Stephen
Lawrence. The report was due to be published
a few days later, but the then Home Secretary
successfully obtained an injunction preventing
publication of any information from it.
• However, in the case of Attorney-General v Guardian
Newspaper Ltd [1988] 3 All ER 567 and Attorney-General
v The Observer Ltd [1989] AC 109 the UK Government
failed to use the breach of confidence action to prevent
the ex-members of the security services from disclosing
national secrets. The author of “Spycatcher”, Peter
Wright, had been a member of M15, a British security
intelligence organization. On his retirement he moved to
Australia and wrote an account of his career in the secret
service despite the fact that former members of M15
owe a lifelong duty of confidence to the Crown.
• Both cases involved newspapers which printed extracts
from the “Spycatcher” books. The House of Lords
considered whether state secrets should in all
circumstances be treated as confidential. Ultimately, the
injunctions against The Guardian and the Observer were
refused and the law of breach of confidence was not used
to prevent these newspapers reporting the contents of the
book. Publication of the “Spycatcher” in the United States
had destroyed the confidential nature of its contents. The
Court considered that no further damage could therefore
be done by publishing information quoted in the book.
(iii) Unauthorised Use of Information
• The third element in the action for breach of
confidence is the unauthorized use of confidential
information to the detriment of the party
communicating it.
• The obligation of confidence obliges the recipient of
confidential information to make use of it for only
those purposes specified either explicitly or implicitly
by the owner of the information.
• The person obliged may not make use of the
information himself or disclose it to others.
(iii) Unauthorised Use of Information
• A breach of confidence need not be deliberate

and if any person fails to take reasonable care to
identify and look after confidential information
that has been passed to him then he will be liable
for breach of confidence through negligence.
• Schering Chemicals v. Falkman [1982], the
chemical company employed David Elstein, a TV
programme maker, to give media training to
some of its employees.
• As part of this relationship with the company, he
obtained information about its work, and decided that
there was a TV programme to be made about allegations
that the company’s drugs could cause birth defects.
• Mr. Elstein did not use any material he had gained as a
result of his work with the company, gathering
material instead from publicly available sources but,
even so, the Court of Appeal held that he acted in
breach of confidence. The court issued an injunction
preventing the programme from being broadcast.
MISUSE OF PRIVATE INFORMATION
• In the case of Campbell v. MGN, the House of

Lords held that in cases involving ‘misuse of
private information’, a two-stage test should be
applied (in place of the three-stage test in Coco
v. Clark).
• The Court should ask:
• (1) Did the claimant have a reasonable
expectation of privacy with respect to the
information disclosed? And if so,
MISUSE OF PRIVATE
INFORMATION
• (2) Is the person’s right to privacy more
important, in the circumstances, than
someone’s else’s right to freedom of
expression (usually the media’s right)?
MISUSE OF PRIVATE
INFORMATION
 Reasonable expectation of privacy
• In deciding whether the information was a kind to create
a reasonable expectation of privacy, the Court in
Campbell said that the question would be: was the
information obviously private?
• See Campbell V. MGN
• Mckennitt v. Ash [2005]
• HRH Prince of Wales v. Associated Newspaper Ltd [2006]
• Lord Browne of Madingley v. Associated Newspaper
[2007]
MISUSE OF PRIVATE
INFORMATION
 Cases involving Children
• Murry v. Big Picture [2008]
 Sexual activity
• Mosley v. News Group Newspaper [2008]
 Photographs and Video
• Princess Caroline Case (Von Hannover v
Germany [2004])
• Murry v. Big Picture [2008]
MISUSE OF PRIVATE
INFORMATION
 Privacy v. Freedom of Expression
• If the court finds that the information or
photographs create an expectation of
privacy, the next stage is to weigh the
claimant’s right to privacy against the right to
freedom of expression.
• Campbell v. MGN
• CC v. AB [2006]
DEFENCES
• There are three defences to a claim for breach
of confidence:
 Consent
 Information in Public Domain
 Public Interest
REMEDIES
• Injunction
• Order for Delivery Up
• Damages
• Accounts for Profits
THANK YOU

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UNIVERSITY OF LUSAKA

• The protection of confidentiality may be extended to

• In Archer v. Williams (2003), Lady Archer,

• Also in A-G v. Baker [1990], a former servant

• However, the fact that an employment contract

• This duty means that information gained through

• A breach of confidence need not be deliberate

• In the case of Campbell v. MGN, the House of

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