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Confidential Information


Title: Lecture 4: Confidential Information Author: cstewart Last modified by: User Created Date: 8/24/2005 1:40:58 AM Document presentation format – PowerPoint PPT presentation

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Title: Confidential Information

Confidential Information
  • Cameron Stewart

The obligation
  • Saltman Engineering Co Ltd v Campbell Engineering
    Co Ltd (1948) 65 RPC 203 at 213
  • If a defendant is proved to have used
    confidential information, directly or indirectly
    obtained from a plaintiff, without the consent,
    express or implied, of the plaintiff, he will be
    guilty of an infringement of the plaintiffs

What is confidential information?
  • the myriad ways obligations of confidence
  • The phrase is best viewed as a term that covers
    information that is subject to an obligation of
  • What sorts of relationships give rise to
    obligations of confidence? Confidences arise in
    three sorts of relationships private
    confidences, confidences relating to government
    secrets, and commercial confidences.

The origins of the action for breach of
  • Property origins
  • Franklin v Giddins 1978 Qd R 72
  • Krueger Transport Equipment Pt Ltd v Glen Cameron
    Storage 2008 FCA 803
  • OBG Ltd v Allan 2008 1 AC 1
  • Contract origins
  • Deta Nominees Pty Ltd v Viscount Plastic Products
    Pty Ltd 1979 VR 167
  • Seager v Copydex Ltd 1967 2 All ER 415
  • Ministry of Defence v Griffin 2008 EWHC 1542

The origins of the action for breach of
  • Tort origins economic torts or fusion fallacy?
  • Campbell v Mirror Group Newspapers Ltd 2004 2
    AC 457
  • Mosley v News Group Newspapers Ltd 2008 EWHC
  • Human rights?
  • Unjust enrichment?

Equitable origins in conscience
  • Like most heads of exclusive equitable
    jurisdiction, its rational basis does not lie in
    proprietary right. It lies in the notion of an
    obligation of conscience arising from the
    circumstances in or through which the information
    was communicated or obtained.
  • Moorgate Tobacco Co Ltd v Philip Morris Ltd (No
    2) (1984) 156 CLR 414 at 4378 per Deane J

The modern doctrine of breach of confidence
  • Coco v A N Clark (Engineers) Ltd

The modern doctrine of breach of confidence
  • Coco v A N Clark (Engineers) Ltd, Megarry J
  • In my judgment, three elements are normally
    required if, apart from contract, a case of
    breach of confidence is to succeed. First, the
    information itself, in the words of Lord Greene
    MR in the Saltman case on page 215, must have
    the necessary quality of confidence about it.
    Secondly, that information must have been
    imparted in circumstances importing an obligation
    of confidence. Thirdly, there must be an
    unauthorised use of that information to the
    detriment of the party communicating it.

Information that has a confidential quality
  • Secrecy and the public domain
  • Lucasfilm Ltd v Ainsworth 2008 EWHC 1878
  • Lennon v News Group Newspapers Ltd 1978 FSR
    573, John Lennon failed to prevent his former
    wife from publishing secrets of their married
    life, on the basis that he had himself published
    information on the topic.

Information that has a confidential quality
  • Transitory publication - a Chinese pop star was
    successful in restraining the publication of an
    embarrassing video tape on the Internet, even
    after a verbal account of the contents had been
    published in a Hong Kong newspaper Kwok v Thang
    1999 NSWSC 1034
  • G v Day 1982 1 NSWLR 24 .

Australian Football League v Age Company Ltd
(2007) 15 VR 405
  • 3 AFL players who had tested positive to drugs
    were identified on an internet discussion forum.
  • An electronic newspaper article had also named
    the players to a limited group of subscribers for
    about 5 hrs.
  • A further publication of one of the players
    names had occurred when a phone caller named the
    player on the Fox Footy television program.
  • Regardless, Kellam J found that the information
    had still not yet fully entered the public domain
    and remained confidential. A permanent injunction
    was ordered on the release of the players

Personal information
  • Prince Albert v Strange

Personal information
  • marital and defacto relations
  • Giller v Procopets
  • sexual preference and activity
  • Stephens v Avery
  • A v B (a company) 2002 2 All ER 545
  • Theakston v Mirror Group Newspapers Ltd 2002
    EWHC 137
  • Mosley v News Group Newspapers
  • A v B plc 2003 QB 195
  • Brown v Associated Newspapers Ltd 2008 QB 103

Personal information
  • Diaries
  • Prince of Wales v Associated Newspapers
  • McKennitt v Ash 2008 QB 73
  • Medical history
  • X v Y 1988 2 All ER 648
  • Campbell v MGN Ltd 2004 UKHL 22.
  • Witnesses and informants
  • Venables v News Group Newspapers Ltd 2001 1 All
    ER 908
  • Rogers v TVNZ 2007 NZSC 91
  • Cultural and religious information
  • Foster v Mountford Rigby Ltd
  • Church of Scientology of California v Kaufman
    1973 RPC 635

Commercial information
  • Trade secrets or know-how?
  • Ansell Rubber Co Pty Ltd v Allied Rubber
    Industries Pty Ltd
  • (1) the extent to which the information is known
    outside of his business (2) the extent to which
    it is known by employees and others involved in
    his business (3) the extent of measures taken by
    him to guard the secrecy of the information (4)
    the value of the information to him and to his
    competitors (5) the amount of effort or money
    expended by him in developing the information
    (6) the ease or difficulty with which the
    information could be properly acquired or
    duplicated by others.

Commercial information
  • Faccenda Chicken Ltd v Fowler
  • 1.trivial information, which is publicly
    available or so obvious that it cannot be
  • 2.information that must be treated confidentially
    until the termination of employment, whereupon it
    becomes part of the ex-employees collective
    skill, knowledge and ability or
  • 3.highly confidential trade secrets, which will
    be protected by the courts even after the
    termination of employment.

Commercial information
  • Del Casale v Artedomus (Aust) Pty Limited 2007
    NSWCA 172
  • . The extent to which the information is known
    outside the business.
  • 2. The extent to which the trade secret was known
    by employees and others involved in the
    plaintiffs business.
  • 3. The extent of measures taken to guard the
    secrecy of the information.
  • 4. The value of the information to the plaintiffs
    and their competitors.
  • 5. The amount of effort or money expended by the
    plaintiffs in developing the information.

Commercial information
  • 6. The ease or difficulty with which the
    information could be properly acquired or
    duplicated by others.
  • 7. Whether it was plainly made known to the
    employee that the material was by the employer as
  • 8. The fact that the usages and practices of the
    industry support the assertions of
  • 9. The fact that the employee has been permitted
    to share the information only by reason of his or
    her seniority or high responsibility.
  • 10. That the owner believes these things to be
    true and that belief is reasonable.
  • 11. The greater the extent to which the
    confidential material is habitually handled by
    an employee, the greater the obligation of the
    confidentiality imposed.
  • 12. That the information can be readily

Commercial information
  • Hodgson JA
  • Where the confidential information is something
    that is ascertainable by enquiry or experiment,
    albeit perhaps substantial enquiry or experiment,
    and the know-how which the ex-employee is clearly
    entitled to use extends to knowledge of the
    question which the confidential information
    answers, it becomes artificial to treat the
    confidential information as severable and
    distinguishable from that know-how and in that
    kind of case, courts have tended not to grant

Government secrets
  • Commonwealth v John Fairfax Sons, at CLR 51
  • Attorney-General (UK) v Heinemann Publishers
    Australia Pty Ltd

Government secrets
  • Semi-govt? British Steel Corp v Granada
    Television Ltd 1981 AC 1096
  • Esso Resources Ltd v Plowman (1995) 183 CLR 10 at
  • Soldiers? R v Attorney-General 2003 UKPC 22
  • Ministry of Defence v Griffin 2008 EWHC 1542

The duty or obligation of confidence
  • Coco v A N Clark (Engineers) Ltd
  • Express Obligation
  • Implied Obligation
  • Hitchcock v TCN Channel Nine Pty Ltd (No 2)
    2000 NSWCA 82.
  • Unsolicited communications
  • Misappropriation of information
  • Eavesdroppers
  • Third parties

Establishing a breach
  • The test which has found widespread acceptance is
    whether or not the information was disclosed for
    a limited purpose. If the information was
    disclosed for a limited purpose, the confidence
    crystallises around that limited purpose. The
    confidant will be bound by an obligation the
    content of which is not to use or disclose the
    information for any purpose other than the
    limited one for which the information was
    imparted. -
  • F Gurry, Breach of Confidence in P Finn (ed),
    Essays in Equity, 1985.

Establishing a breach
  • Smith Kline and French Laboratories (Aust) Ltd v
    Secretary, Dept of Community Services Health
  • Whether one adopts the reasonable man test
    suggested by Megarry J or some other, there can
    be no breach of the equitable obligation unless
    the court concludes that a confidence reposed has
    been abused, that unconscientious use has been
    made of the information

Establishing a breach
  • R v Department of Health Ex parte Source
    Informatics Ltd
  • The Court of Appeal found that the pharmacists
    would not breach confidence if they supplied
    anonymised information, even though this went
    beyond the confiders purpose in supplying the
    information. The confiders purpose was said to
    be irrelevant when the information was anonymous

Establishing a breach
  • Detriment?

  • Public interest
  • expose dangers to public safety or health
  • Hubbard v Vosper
  • W v Edgell
  • Lion Laboratories Ltd v Evans
  • Woodward v Hutchins
  • McKennitt v Ash 2005 EWHC 3003
  • Richards v Kadian 2005 NSWCA 328

  • Forced disclosure
  • Delay
  • Clean hands
  • Campbell v Mirror Group Newspapers Ltd
  • Australian Football League v Age Company Ltd
    (2007) 15 VR 405
  • Change of position

  • Injunctions
  • The springboard doctrine
  • Delivery-Up
  • Equitable compensation
  • Harris v Digital Pulse Pty Ltd
  • Giller v Procopets
  • Account of profits
  • Attorney-General (UK) v Blake
  • Constructive trusts

The future rights to privacy?
  • No right of privacy
  • Victoria Park Racing Recreation Grounds Co Ltd
    v Taylor
  • Australian Consolidated Press Ltd v Ettingshausen
  • Kaye v Robertson (1991) FSR 62

Developments in New Zealand and England
  • Bradley v Wingnut Films 1993 1 NZLR 415
  • Hosking v Runting 2004 NZCA 34
  • Douglas v Hello! Ltd

DAVID MURRAY (by his litigation friends NEIL
  • Bathurst City Council v Saban
  • Kwok v Thang 1999 NSWSC 1034
  • Donnelly v Amalgamated Television Services Pty
    Limited (1998) 45 NSWLR 570
  • Australian Broadcasting Corp v Lenah Game Meats
    Pty Ltd