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Business property 435

Breach of confidence

Article 8 of the European Convention on Human Rights gives the right to respect for a
person’s private and family life, home and correspondence. The Human Rights Act 1998
came into force in 2000. It did not create a new tort of invasion of privacy but it did
strengthen the law of breach of confidence. However, Art. 10 of the Convention gives the
right to freedom of expression, and so freedom of the press has to be weighed against the
right to privacy.

Suing for breach of privacy

A person bringing a claim for breach of privacy will need to prove three things:

(i) that the information disclosed was confidential;

(ii) that there was an obligation of confidence; and

(iii) that there was unauthorised use of the information.

That the information disclosed was confidential

Any type of information, either commercial, Government or personal secrets, can be
confidential. However, very trivial information is not protected, nor is information which is
widely known.

That there was an obligation of confidence

A statute or a contract might impose an obligation of confidence. Or an obligation might
arise from a relationship, such as an employment, commercial or professional relationship.

That there was unauthorised use of the information

To be an unauthorised use of the information, it must either actually be used or there must
be a threat to use it. Whether or not there was unauthorised use of the information is an
objective test. It is no defence that the unauthorised use was made honestly.

Defences

It is a defence to show that the information was in the public domain, that is to say that it
was not confidential. It is also a defence to show that the public had a legitimate interest to
know the information. An action for breach of confidence is equitable and so it must be
brought reasonably quickly or it will defeated by lapse of time.

Remedies

The usual remedies are damages or an injunction. In addition, the claimant can sue for
profits made from unauthorised use of the information. Also, a defendant who put the
information in the public domain can be prevented from using the information for a certain
time, even though it is in the public domain.

Passing off

Passing off is a tort which is designed to protect the goodwill of a business. It is committed
by a misrepresentation, made by a person in business, to his potential customers. The
misrepresentation must be designed to cause loss to another business and must actually
cause that loss. The definition of goodwill was considered in Chapter 12. Damages or an
injunction are the usual remedies for passing off.