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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, it examines the duties that arise where the parties are in a direct relationship, where there is an indirect relationship, and where no relationship exists. It also describes the duties that arise when the parties are in an employment relationship and tackles the question as to whether (and if so, when) strangers come under an obligation of confidentiality.

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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.

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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. It also tackles secondary liability for breach of confidence before concluding with an examination of the Trade Secrets Directive.

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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.

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Essential Cases: Public Lawx 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, 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 from author Thomas Webb.

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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.

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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 from author Thomas Webb.

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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.

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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. This chapter also discusses potential defences, which include consent to the disclosure and the differential treatment of private information in the public domain.

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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.

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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

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 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. It also considers the notion of ‘relative secrecy’ around which the breach of confidence, along with encrypted information and the so-called ‘springboard’ doctrine.

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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.

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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.

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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.

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All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter focuses on the action for breach of confidence as it relates to commercial secrets. It first considers the jurisdictional basis of the action for breach of confidence and then discusses the elements for establishing a breach of confidence. The first element is that there must be confidential information; the second element is that the defendant comes under an obligation of confidence; the third element of a breach of confidence requires an unauthorized use of the information to the detriment of the person communicating it. The chapter also reviews the main confidentiality obligations that apply to employees and ex-employees with regards to commercial secrets.

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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.

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Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for, and how to achieve extra marks. 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 new 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.

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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.

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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.