Obligation of Confidentiality

There are basically three situations where an obligation of confidentiality arises:

  • where imposed by contract
  • where implied by circumstances of the disclosure
  • where implied by virtue of the relationship between the parties.

Where considering if an obligation of confidentiality arises out of the circumstances of disclosure the test is whether:

“a reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence” (Coco v A N Clark).

Of course if when the materials are handed over it is made clear that they should be treated as confidential then it is obvious that an obligation arises however where the information is disclosed in an informal context the recipient is unlikely to be aware of their obligations. Where you are disclosing information you should therefore ensure that you do so in a private formal place and make it clear that by you treat such information as confidential. Â

As for the relationship between the parties an obvious example of a relationship where there is an obligation of confidentiality is that of employee / employer. Â

Notwithstanding the above the most straightforward method of ensuring that there is an obligation of confidence is by way of a contract (written of course).

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