Breach of Confidence and Misuse of Information

• Law Society Practice Rules 2011 rB1.6


  You must maintain client confidentiality. This duty is not terminated by the passage of time. You must also supervise your employees to ensure that they keep client matters confidential. Only the client, Acts of the legislature,subordinate legislation or the court can waive or override the duty of confidentiality. The duty does not apply to information about any crime a client indicates they will commit."
• Coco v AN Clark

  1. 1969 HCRequirements for breach of confidence:confidential information,2) an obligation of confidence between C and D,3) confidential information made public through "unauthorised use" of the information
• Limiting principles


  1. Confidentiality only applies to confidential information

  2. Duty of confidence does not apply to useless information or trivia

  3. Confidentiality may be outweighed by public interest in disclosure
• Duchess of Argyll v Duke of Argyll [1967] Ch 302


  "the plaintiff's adultery, repugnant though it be, should not in my view license the husband to broadcast unchecked the most intimate confidences of earlier and happier days"t between spouses, between spouses and former spouses, even there was an obligation of confidence.
• Campbell v Mirror Group Newspapers Ltd [2004] 2 AC 457


  A case where a celebrity had misled the public in asserting that she did not take drugs, but the publication of details of her treatment for drug addiction together with covertly taken photographs amounted to an interference with the right to respect for private life
• The potential for the disclosure of information to cause harm was an important factor to be taken into account when assessing the extent of the restriction that was needed to protect a person's right to privacy
• Breach of privacy even if there was no pre-existing relationship
• English law has adapted the action for breach of confidence to provide a remedy for the unauthorised disclosure of personal information
• This development has been mediated by the analogy of the right to privacy conferred by article 8 of the European Convention on Human Rights and has required a balancing of that right against the right to freedom of expression conferred by article 10
• Wainwright v Home Office [2004] 2 AC 406


  Held, dismissing the appeal, that while privacy was a value underlying the common law of breach of confidence, it was not in itself a principle of law and there was no tort of invasion of privacy.English case *
• HRH Prince of Wales v Associated Newspapers (No.3)[2008] Ch 57


  brought a case alleging breach of confidence when journals that he wrote and shared among his friends and people he knew where or extracts from them were published in the newspaper.not a breach of confidence, but delict of private information.
• Article 8 ECHR


  Right to respect for private and family lifeThere shall be no interference by a public authority with theexercise of this right except such as is in accordance with the lawand is necessary in a democratic society in the interests of nationalsecurity, public safety or the economic wellbeing of the country, forthe prevention of disorder or crime, for the protection of health ormorals, or for the protection of the rights and freedoms of others.
• Article 10 ECHR


  Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
• Freedom of expression


  • Includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers
  • States can require licensing of broadcasting, television or cinema enterprises
• Exercise of freedoms


  1. Subject to formalities, conditions, restrictions or penalties as are prescribed by law

  2. Necessary in a democratic society, in the interests of national security, territorial integrity or public safety

  3. For the prevention of disorder or crime

  4. For the protection of health or morals

  5. For the protection of the reputation or rights of others

  6. For preventing the disclosure of information received in confidence

  7. For maintaining the authority and impartiality of the judiciary
• Ferdinand v MGN (2011)


  Rio Ferdinand tried to stop publication of an article alleging he was having an affair. As he was England football captain at the time his conduct was of public interest, so the High Court held the newspapers' right to freedom of expression was more important and refused to grant an injunction.Privacy has become particular difficult to achieve in a digital age.
• The Ultimate Balancing Test - Re S (A Child) [2005] 1 AC 593


  "First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."
• McKennitt v Ash [2006] EWCA Civ 1714


  s Article 8 engaged?• Does the claimant have a reasonable expectation of privacy in respect of the information published?If not - dismiss• If it is engaged, balance with Article 10
• Axel Springer AG v Germany [2012] EMLR 15


  • Does the article contribute to a debate of general interest?• The subject of the article and how well-known the relevant person is• The prior conduct of the person• The method of obtaining the information
• Douglas v Hello! Ltd (No.6) [2005] EWCA Civ 595


  the content, form and consequences for the person of the publication• The severity of the sanction imposed - "the chilling effect"
• Murray v Express Newspapers plc [2009] Ch 481


  Subject to the facts of the case, the law should protect the children of parents who were in the public eye from intrusive media attention, at any rate to the extent of holding that the child had a reasonable expectation that he would not be targeted in order to obtain photographs in a public place for publication, where the taking of such photographs would be objected to on the child's behalf
• Duchess of Sussex v Associated Newspapers Ltd [2021] EWHC 273 (Ch)


  the Court of Appeal upheld summary judgments in favour of HRH the Duchess of Sussex in respect of her claims for misuse of private information and copyright infringement after a newspaper group published articles reproducing extensive extracts from a letter she had written to her estranged father.
• BC v Chief Constable of Police Scotland 2021 SC265


  A reclaiming motion by ten police officers who sent messages via an electronic messaging system had no reasonable expectation of privacy in respect thereof for the purpose of internal disciplinary proceedings, and there was thus no interference with their rights under ECHR art.8, considering all the circumstances of the case which included the attributes of those making the statement, the content of the messages, and the attributes of the recipients.
• Richard v BBC [2019] Ch 169


  the BBC was liable to Sir Cliff Richard for infringing his privacy rights by broadcasting the fact that he was the subject of a police investigation and that his property was being searched in connection with the investigation.
• Legitimate starting point


  Once it is established that the relevant information was that a person, prior to being charged, was under criminal investigation, the correct approach is for a court to start with the proposition that there will be a reasonable expectation of privacy in respect of such information
• If the expectation does not arise


  The information can be published
• If the expectation is reduced


  It will bear on the weight to be attached to the article 8 rights at stage two