This chapter discusses the legal duty of confidentiality (or secrecy) that banks owe their customers. The real problems in the application of the doctrine in practice are two-fold. First, confidentiality has a habit of getting in the way of commercially acceptable practices. There is the potential for breaches of confidentiality where a bank performs different functions. For instance, banks may like to distribute information throughout the corporate group so that a range of financial, insurance, and other services can be marketed to customers. Secondly, confidentiality can act as a cloak for wrongdoing, often on a massive scale. Political leaders who have exploited their people, drug barons, and criminals have used the banking system to spirit away their ill-gotten gains. Bank confidentiality has then acted as an obstacle to bringing the culprits to justice and recovering the booty. Confidentiality also provides one of the explanations of how international terrorists have transferred financing round the world without detection.
12
Chapter
9. The Duty of Confidentiality
Ross Cranston, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare
Chapter
8. Confidentiality and Data
This chapter examines the ethical justifications for protecting patient confidentiality. It then discusses the different legal sources of the duty of confidence; exceptions to the duty of confidence; and the remedies available for its breach. It briefly considers patients’ rights to gain access to their medical records. Finally, the chapter covers the implications of ‘big data’ and machine learning for healthcare, and the increasing use of mobile technology in order to generate, store and transmit health data.
Chapter
7. Confidentiality
This chapter examines the legal and ethical aspects of medical confidentiality. The discussion includes the legal basis of confidentiality; defences to claims of breach of confidentiality; the Data Protection Act 1998; legal remedies in confidentiality cases; patient access to their own health information; and ethical arguments for and against confidentiality. Underpinning this chapter is the tension between requiring that a patient’s confidences are kept and the fact that sometimes there is an overwhelming reason why confidentiality needs to be breached. A further difficulty for this topic is that once confidentiality has been breached it can be very difficult to formulate an effective legal remedy.
Chapter
11. Medical Confidentiality and Data Protection
A. M. Farrell and E. S. Dove
This chapter covers two legal regimes in the biomedical context that are of increasing importance and complexity: the common law duty of confidentiality and data protection law. Both regimes have experienced significant development in the past generation. As part of this exploration, brief consideration will also be given to a third related and emerging legal regime, namely the tort of ‘misuse of private information’. The central focus of the chapter is the interplay between UK data protection law, the duty of confidentiality, and wider frameworks in Europe and at the international level. A range of sources are considered, including case law, primary, and secondary legislation such as the Health Service (Control of Patient Information) Regulations 2002, UK General Data Protection Regulation, and Data Protection Act 2018; guidance from entities such as the General Medical Council; and academic literature. The chapter illustrates that following both Brexit and the Covid-19 pandemic, medical confidentiality and data protection law are undergoing a state of reform that may have significant implications for patient privacy and trust in the healthcare system.
Chapter
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.
Book
Jonathan Herring
Legal Ethics provides an overview of this topic, highlighting that the issues surrounding professional conduct are not always black and white and raising interesting questions about how lawyers act and what their role entails. Key topics, such as confidentiality, negligence, and vnfees, are covered, with references throughout to the professional codes of conduct. The work asks: who would or should defend a potential murderer in court? Can a lawyer represent two parties on the same case? Is ‘no win–no fee’ an ethical system? What are Chinese walls and do they work? Features throughout the title to aid learning include the highlighting of key cases, principles, and definitions; the inclusion of a variety of viewpoints through cases, popular media, and scholarly articles; and the inclusion of ‘digging deeper’ and ‘alternative viewpoint’ boxes which encourage critical reflection and better understanding of key topics.
Book
Jonathan Herring
Legal Ethics provides an overview of this topic, highlighting that the issues surrounding professional conduct are not always black and white and raising interesting questions about how lawyers act and what their role entails. Key topics, such as confidentiality, negligence, and fees are covered, with references throughout to the professional codes of conduct. The work asks: who would or should defend a potential murderer in court? Can a lawyer represent two parties on the same case? Is ‘no win-no fee’ an ethical system? What are Chinese walls and do they work? Features throughout the title to aid learning include the highlighting of key cases, principles, and definitions; the inclusion of a variety of viewpoints through cases, popular media, and scholarly articles; and the inclusion of ‘digging deeper’ and ‘alternative viewpoint’ boxes which encourage critical reflection and better understanding of key topics.
Chapter
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
1. Introduction
The civil courts perform the important function of resolving disputes that cannot be resolved by agreement between the parties. This introductory chapter briefly sets out the book’s focus, namely the mechanics of how legal and equitable rights are asserted, determined, and enforced through the civil courts. It then discusses the legal profession, lawyers’ duties, initial instructions, confidentiality and conflict of interest, pre-action correspondence, and the main stages in court proceedings.
Book
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. Intellectual Property Concentrate is the essential study and revision guide for intellectual property law students. The clear, succinct coverage enables you to quickly grasp the fundamental principles of this area of law and helps you to succeed in exams. After an introduction to intellectual property and common themes, the book covers: copyright; computer programs and databases; moral rights; performers’ rights; trade secrets and confidential information; patents; designs; and passing-off and trade marks. Written by experts and covering all the key topics so you can approach your exams with confidence, the book is: clear, concise, and easy to use, helping you get the most out of your revision; full of learning features and tips to show you how best to impress your examiner; and accompanied by online resources including multiple-choice questions and interactive flashcards to test your understanding of topics. Its ‘Exam essentials’ feature prepares you for your intellectual property law exam by giving help and guidance on how to approach questions, structure answers, and avoid common pitfalls.
Chapter
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
1. Introduction
The civil courts perform the important function of resolving disputes that cannot be resolved by agreement between the parties. This introductory chapter briefly sets out the book’s focus, namely the mechanics of how legal and equitable rights are asserted, determined, and enforced through the civil courts. It then discusses the legal profession, lawyers’ duties, initial instructions, confidentiality and conflict of interest, pre-action correspondence, and the main stages in court proceedings.
Chapter
21. Public policy
The public interest in efficient and fair trials may be seen as underlying the rules of disclosure in civil litigation, whereby a litigant is obliged to make pre-trial disclosure of the documents on which he relies and the documents that adversely affect his own case or adversely affect, or support, another party’s case, even though such documents may not be admissible evidence at the trial. There is also a public interest in enabling material to be withheld where its production would harm the nation or the public service. Where these two kinds of public interest clash and the latter prevails over the former, relevant and otherwise admissible evidence is excluded at trial. Such material is said to be withheld by reason of ‘public interest immunity’. This chapter discusses the development of the modern law on public interest immunity; the scope of exclusion on grounds of public policy; and related procedural issues in civil and criminal cases.
Chapter
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
10. Performance of the Contract of Employment
This chapter begins with a discussion of the personal nature of the employment contract, and the fact that such a contract is necessarily one of personal service which gives rise to duties and obligations on both sides. It deals with issues such as the implied duties of the employer to provide for the employee (including the implied duty to provide work, pay wages, confidentiality, and the implied duty of trust and confidence), and the corresponding implied obligations of the employee (including the duty of faithful service, duty to use skill and care). There is also a discussion of whistleblowing and public interest disclosures. It then explains employer’s vicarious liability, and harassment and bullying.
Chapter
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.
Book
Lionel Bently, Brad Sherman, Dev Gangjee, and Phillip Johnson
Intellectual Property Law provides a detailed analysis of intellectual property law with reference to a wide range of academic opinion, giving a broad context for exploring the key principles of the subject. The book covers a number of areas of intellectual property law including copyright, patents, the legal regulation of designs, trade marks and passing off, confidential information, misuse of private information, and litigation and remedies. In this sixth edition, the introduction has been updated to take account of the United Kingdom leaving the European Union. Important developments covered include CJEU decisions on the concept of a copyright work, communication to the public, digital exhaustion and defences, and the Court of Appeal’s analysis of joint authorship.
Book
Jo Samanta and Ash Samanta
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. Medical Law Concentrate provides a study and revision guide aiming to cover the essential aspects of this rapidly changing field of law. Topics covered include: the contemporary healthcare environment; medical negligence; consent; confidentiality; and access to medical records. The volume also looks at abortion and prenatal harm, assisted reproduction, clinical research, and organ transplantation. Finally, it covers mental health law and the end-of-life decisions. The work is underpinned by reference to statutory provisions and the common law. Where appropriate, pertinent bioethical and moral principles that often underpin the law in this area are discussed, as well as the influence of quasi-law. Reference is made to key points of comparison with other jurisdictions, as well as some socio-legal considerations.
Chapter
6. Medical Confidentiality
G. T. Laurie, S. H. E. Harmon, and E. S. Dove
This chapter discusses ethical and legal aspects of medical confidentiality. It covers the relationship between confidentiality and data protection law; the possible exceptions to the confidentiality rule; confidentiality and the legal process; confidentiality for the purposes of medical research; patient access to medical records; remedies for breach of confidentiality; and confidentiality and death.
Book
Tanya Aplin and Jennifer Davis
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. Intellectual Property Law: Text, Cases, and Materials provides a complete resource for undergraduate and postgraduate students of intellectual property (IP) law. The only text of its kind in the field, it combines extracts from major cases and secondary materials with critical commentary from experienced teachers in the field. The book deals with all areas of IP law in the UK: copyright, trade marks and passing off, personality and publicity rights, character merchandising, confidential information and privacy, industrial designs and patents. It also tackles topical areas, such as the application of IP law to new technologies, such as artificial intelligence, and the impact of the internet on trade marks, copyright, and privacy. While the focus of the book is on IP law in a domestic context, it provides international, EU, and comparative law perspectives on major issues, and also addresses the wider policy implications of legislative and judicial developments in the area. The book is an ideal resource for all students of IP law who need cases, materials, and commentary in a single volume.
12
