The law of confidentiality is an interesting and yet complicated area of law. It is also an area which impacts every individual at some point in their life. The purpose of this article is to broadly outline the general principles.
If a person has been made aware or received information and it is deemed to have been received in ‘confidence’ then this information cannot be used for the recipient’s unfair advantage. Essentially, it cannot be used for a purpose which is to the detriment of the provider of that information unless such information is being given with the full consent and understanding that it will be used only to the benefit of the recipient.
There is some case law which go into detail and although is beyond the scope of this note, I have picked out a couple which are important cases to give some brief exploration. Firstly, the case of Coco v Clark is understood as the case which offers a three-limb test to determine whether particular information is deemed as confidential information. It is a requirement that:
- The information itself must have the necessary quality of confidence.
- The information must have been imparted in circumstances importing an obligation of confidence; and
- There must be an unauthorised use of that information to the detriment of the rights holder.
Secondly, the case of Vestergaard Frandsen v Bestnet Europe Ltd says that for the “conscience of the recipient to be affected, it must have agreed, or must know, that the information is confidential” which means that the recipient of such information who has been accused of a breach of confidentiality must satisfy the above points for the right to be enforced against.
There are different forms of confidential information, for example trade secrets in a commercial setting. This is considered as information which has the capability of the owner of this information to have a commercial advantage which they want to keep secret. If this information is then disclosed to the world then the owner of this information can take action against the person who breached this confidentiality.
Although I could go on for some time explaining the finite detail of the law of confidentiality, the most important thing to consider or take from this note is that the information in question MUST have the capability and necessary quality of confidence. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd stated that the information has the necessary quality of confidence about it, namely, it must not be something which is public property and public knowledge. This is not necessarily something which is easy to identify and in fact takes some evaluation.
Essentially, it must be understood that whether you are a victim of breach of confidentiality or whether you are accused of it, there are many things to consider and Lawdit can advise you. We have been instructed by many people on both sides of the coin and have had extensive experience on the law of confidentiality.
For further information on this, I have prepared some relative and interesting cases below which go into far more detail.
- Vestergaard Frandsen A/S v Bestnet Europe Ltd  UKSC 31
- Coco v AN Clark (Engineers) Ltd  F.S.R. 415
- Saltman Engineering Co Ltd v Campbell Engineering Co Ltd  65 RPC 203
- Racing Partnership Ltd v Done Brothers (Cash Betting) Ltd  EWHC 1156 (Ch)
- Barclays Bank Plc v Guardian News and Media Ltd  EWHC 591 (QB)
- Kerry Ingredients (UK) Ltd v Bakkavor Group Ltd and others  EWHC 2448 (Ch)
- Mars v Teknowledge  FSR 138
- CF Partners (UK) LLP v Barclays Bank Plc & Another  EWHC 3049 (Ch)