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Chapter

Cover Intellectual Property Law

45. Obligation of Confidence  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter considers one requirement in a breach of confidence action: that the defendant was under a legal (as opposed merely to a moral) obligation of confidentiality. It first looks at the basic test for a confidence arising that is ‘knowledge’ or ‘notice’. More specifically, the chapter examines the duties that arise in different situations, such as where the parties are in a direct relationship, where there is an indirect relationship, and where no relationship exists.

Chapter

Cover Intellectual Property Law

46. Breach and Defences  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter examines the defences available where a duty of confidence has been breached. It begins by considering the scope of the obligation that must be ascertained to determine whether the duty of confidence has been breached. It then discusses three factors for a breach of confidence to occur: derivation, the defendant’s state of mind, and whether the breach has caused damage. The chapter also tackles secondary liability for breach of confidence before concluding with an examination of the implementation of the Trade Secrets Directive.

Chapter

Cover Intellectual Property Law

19. Breach of confidence: Trade secrets and private information  

This chapter studies breach of confidence. In the United Kingdom, the area of breach of confidence has traditionally been used to protect ideas and information, including trade secrets. The doctrine of breach of confidence is judge-made law, rooted in equitable principles. In consequence, it has developed in a piecemeal, and sometimes contradictory fashion, so that the rationale for the action has not always been clear. Nevertheless, the law of confidence is broad enough in the United Kingdom to encompass: the common definition of a trade secret (commercial, usually technical information); personal, private information which may also have a commercial value (including information which may be protected under the right to privacy under Art. 8 of the European Convention on Human Rights (ECHR)); and information protected by the state. The chapter then looks at the role of trade secrets in intellectual property law and considers the EU Trade Secrets Directive.

Chapter

Cover Holyoak and Torremans Intellectual Property Law

29. Confidentiality and trade secrets  

This chapter discusses law on confidentiality and trade secrets. It covers the historical development of the law of breach of confidence; the three essential elements necessary in a claim for breach of confidence; remedies for breach of confidence; and the impact of the internationalization of the law of intellectual property.

Chapter

Cover Essential Cases: Public Law

Attorney General v Jonathan Cape Ltd [1976] QB 752, High Court (Queen’s Bench Division)  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Attorney General v Jonathan Cape Ltd [1976] QB 752, before the High Court (Queen’s Bench Division). This case concerns the constitutional convention of collective Cabinet responsibility which requires, inter alia, that Cabinet discussions remain secret, whether the publication of a diary detailing Cabinet discussions breached the convention, and what the constitutional consequences of any breach were. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Essential Cases: Public Law

Attorney General v Jonathan Cape Ltd [1976] QB 752, High Court (Queen’s Bench Division)  

Essential Cases: Public Law provides a bridge between course textbooks and key case judgments. This case document summarizes the facts and decision in Attorney General v Jonathan Cape Ltd [1976] QB 752, before the High Court (Queen’s Bench Division). This case concerns the constitutional convention of collective Cabinet responsibility which requires, inter alia, that Cabinet discussions remain secret, whether the publication of a diary detailing Cabinet discussions breached the convention, and what the constitutional consequences of any breach were. The document also includes supporting commentary and questions from author Thomas Webb.

Chapter

Cover Street on Torts

22. Privacy actions in tort  

This chapter examines the privacy action in tort. It explains that the tort has its origins in the equitable wrong of breach of confidence. It discusses the gist and elements of this tort and highlights the influence of Article 8 of the European Convention on Human Rights on the case law. The law now protects against infringements of private information and against infringements upon the seclusion of the individual. This chapter also discusses potential defences, which include consent to the disclosure and the differential treatment of private information in the public domain.

Chapter

Cover Lunney & Oliphant's Tort Law

13. Privacy  

Donal Nolan and Ken Oliphant

The right of privacy under Article 8 of the European Convention on Human Rights was incorporated into English law by the Human Rights Act 1998, but English law as yet recognises no tort of invasion of privacy as such. Admittedly, a number of specific torts protect particular aspects of privacy, but this protection may be regarded as haphazard, incidental and incomplete. Recent decisions, however, have seen substantial developments in the protection given to particular privacy interests, above all by adapting the law of breach of confidence to provide a remedy against the unauthorised disclosure of private information. These issues are discussed in sequence in this chapter.

Chapter

Cover Tort Law

16. Invasion of privacy  

This chapter examines the nascent ‘tort’ of invasion of privacy. It first considers why no free-standing tort of invasion of privacy exists, before looking at breach of confidence—a legal concept straddling tort and equity and concerned with ‘secrets’ and judicially adapted to protect privacy by developing the new tort of misuse of private information. The chapter then asks whether developments in the law protecting privacy—particularly in the wake of the Human Rights Act 1998—threaten freedom of expression and therefore the general public’s ‘right’ to information, particularly about celebrities, including royalty and politicians.

Chapter

Cover Tort Law

16. Invasion of privacy  

This chapter examines the nascent ‘tort’ of invasion of privacy. It first considers why no free-standing tort of invasion of privacy exists, before looking at breach of confidence—a legal concept straddling tort and equity and concerned with ‘secrets’ and judicially adapted to protect privacy by developing the new tort of misuse of private information. The chapter then asks whether developments in the law protecting privacy—particularly in the wake of the Human Rights Act 1998—threaten freedom of expression and therefore the general public’s ‘right’ to information, particularly about celebrities, including royalty and politicians.

Chapter

Cover Tort Law: Text and Materials

14. Privacy  

The right of privacy under Article 8 of the European Convention on Human Rights was incorporated into English law by the Human Rights Act 1998, but English law as yet recognises no tort of invasion of privacy as such. Admittedly, a number of specific torts protect particular aspects of privacy, but this protection may be regarded as haphazard, incidental, and incomplete. Recent decisions, however, have seen substantial developments in the protection given to particular privacy interests, above all by adapting the law of breach of confidence to provide a remedy against the unauthorised disclosure of personal information. These issues are discussed in this chapter.

Chapter

Cover Intellectual Property Law

44. Is the Information Capable of Being Protected?  

L. Bently, B. Sherman, D. Gangjee, and P. Johnson

This chapter looks at the type of information that is capable of being protected by the action for breach of confidence. More specifically, it examines four limitations that are placed on the type of information that may be protected under the action: where the information is trivial, immoral, vague, or in the public domain. The chapter also considers the notion of ‘relative secrecy’ along with issues associated with encrypted information and the so-called `springboard’ doctrine.

Chapter

Cover Concentrate Questions and Answers Public Law

9. Freedom of expression  

The Q&A series offers the best preparation for tackling exam questions. Each chapter includes typical questions, diagram problem and essay answer plans, suggested answers, notes of caution, tips on obtaining extra marks, the key debates on each topic, and suggestions on further reading. This chapter moves on from the previous one to examine the freedom of expression. Under common law, freedom of speech is guaranteed unless the speaker breaks the law, but this is now reinforced by the right of free expression under the European Convention on Human Rights. The questions here deal with issues such as obscenity law and contempt of court; the Official Secrets Act; freedom of information; data protection; breach of confidence; and whether there is a right of privacy in English law.

Chapter

Cover Markesinis & Deakin's Tort Law

22. The Protection of Human Privacy  

This chapter discusses violations of human privacy by private individuals and organisations. This is a rapidly evolving area of the law, one which has, like defamation, been influenced to a great extent by developments in communication technology, as well as in human rights law. And like defamation, this area of the law too raises important questions about the role, and conduct, of the press. The discussion in this chapter is divided as follows: (1) the difficulties of defining privacy; (2) the casuistic protection afforded by English law; (3) the protection afforded in the most important types of cases; (4) the growth of breach of confidence after the entry into force of the Human Rights Act 1998 and the emergence in recent years of the ‘distinct’ tort of misuse of private information; (5) Europe and beyond.

Chapter

Cover Contemporary Intellectual Property

17. Breach of confidence  

This chapter discusses contemporary law and policy relating to the protection of confidential information, under the common law. It considers the key elements of breach of confidence: the nature of confidential information, circumstances imparting obligations of confidence, and unauthorised use of confidential information. The chapter also considers the increasing impact of the Human Rights Act 1998 (HRA 1998) and the relevance of international perspectives and approaches. The chapter summarises some key cases to give examples of the issues that arise, discusses the evolving relationship between secrecy and innovation, and the impact of other forms of information control and the relevance of freedom of expression.

Chapter

Cover Medical Law Concentrate

4. Confidentiality and access to medical records  

This chapter examines confidentiality as a fundamental aspect of doctor–patient relationships: its ethical basis and equitable, contractual, and tortious obligations. It then considers the law governing access to medical records and statute that necessitates fair and lawful processing of sensitive personal data and the EU General Data Protection Regulation aimed at harmonising data protection legislation. It discusses exceptions to the duty of confidentiality, including explicit and implied consent, prevention of harm to others, police investigation, public interests, and press freedom. The chapter considers confidentiality with respect to children; adults who lack capacity and deceased patients; remedies available for breach of confidence; access to electronic patient records; and issues raised by genetics-related information.

Chapter

Cover Equity

5. Restricting Personal Autonomy  

Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. Another contribution of Equity to the common law landscape is the invention of several new and uniquely structured obligations, which restrict individual autonomy in special and rather aggressive ways. This chapter considers obligations that constrain the defendant's autonomy even when his impugned behaviour has caused the claimant no harm. It focuses on Equity's proscriptive rules. The best known are Equity's fiduciary obligations, which demand loyalty and self-denial from trustees and others whose roles entitle them to exercise discretion in managing property belonging to another. More generally, Equity regulates the exercise of all powers that are intended to affect the interests of others, regardless of whether the affected interests are proprietary or not. These are Equity's rules on abuse of power. Finally, Equity has particular strategies to regulate the use of information. These are Equity's rules on breach of confidence.

Chapter

Cover Tort Law Directions

16. Privacy and misuse of private information  

Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, diagrams, and exercises help readers to engage fully with each subject and check their understanding as they progress. The Calcutt Committee Report on Privacy and Related Matters (1990) defined privacy as ‘the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information’. While a number of different torts indirectly address wrongful intrusion into another’s privacy, English law has not directly protected privacy in its own right. It was the Human Rights Act 1998 that has made it possible to use breach of confidence in regulating the publication of private information. This chapter looks at the history of the protection of privacy in English law, discusses the current legal approaches to privacy, examines the impact of the Human Rights Act 1998 on this developing area of law, and evaluates English law on privacy in an international context.

Chapter

Cover Contemporary Intellectual Property

17. Breach of confidence  

This chapter discusses contemporary law and policy relating to the protection of confidential information. It considers the key elements of breach of confidence: the nature of confidential information, circumstances imparting obligations of confidence, and unauthorised use of confidential information. The chapter also considers the increasing impact of the Human Rights Act 1998 (HRA 1998). The chapter summarises some key cases to give examples of the issues that arise (eg in the employment context), discusses the evolving relationship between secrecy and innovation, and the impact of other forms of information control. The impact of Trade Secrets Directive, including post-Brexit, is also discussed.

Chapter

Cover Intellectual Property Concentrate

6. Trade secrets, confidential information, and the protection of private information  

This chapter focuses on the law of breach of confidence, which protects trade secrets and privacy. It is judge-made law, with its origins in equity. The action for breach of confidence now resembles a common law cause of action, but its equitable basis is still evident in the flexibility and discretion the judges adopt in deciding cases. The Human Rights Act 1998 required the courts to implement the right to private and family life. The courts have done this, in cases concerning private information, by extending the law to protect privacy where the information concerned was not secret. This is now regarded as a separate branch of the law. Special considerations also apply in relation to the duties employees owe to their employer both during and after their employment. There is a defence to an action for breach of confidence where publication is in the public interest.