Breach of Confidence and Private Information: Human Rights and Brexit

The law of confidence protected privacy interest to an extent prior to the HRA 1998 It has been utilised to give a wider protection to the right of privacy as familiarised under article 8 of the ‘ECHR’ thus, the action has experienced notable doctrinal shift. An obligation of confidence may arise either impliedly or expressly or on an independent equitable basis of a contract per the Coco v Clark which will be discussed in this essay, PRE HRA, these key elements are not fully applicable to the private and personal information, because the defence of ‘public interest’ has been interwoven with the right to freedom of expression in the ART 10 of the ECHR. [1] 

In the essay, will discuss if the breach of confidence is superfluous and is likely to wither on the judicial vine with use of the key elements of breach of confidence and the continually changing misuse of private information, uncertainty of HRA’s future and UK’s human right protection post-Brexit, [2]  and the trade directives.

As mentioned above before a duty of confidence is established. It ought to have some key elements which are 1). the necessary quality of confidence 2).  the information must have been imparted by a person to another in circumstances importing an obligation of confidence 3).  an unauthorised use or disclosure of the information by the party under an obligation of confidence the following have been elaborated on above. The case law following the HRA illustrates that the previous Coco v Clark requirement has been altered instead of the former if the personal information has the ‘necessary quality of confidence’ the courts now question if the information is ‘private’ and when it is private does it deem the information as confidential and this change takes effect in the HOL decision in Campbell v Mirror groups Newspaper. In this case The appellant (C), a popular model, appealed against the decision ([which had the effect of dismissing her claim against the  newspaper (M) for damages for breach of confidence and compensation under the Data Protection Act 1998. D had published stories about C relating to her attendance at Narcotics Anonymous (NA) meetings. C had previously stated publicly that she did not take drugs. C claimed damages for breach of confidence and compensation under the 1998 Act, alleging the wrongful publication by D of private information. [3]  in Campbell v MGN the Court of Appeal advised that the ‘unjustifiable publication of private information would be better described as breach of privacy rather than breach of confidence’ and in the House of Lords, Lord Nicholl added that in spite of the view it took the unanswered  important question is if there remains a role for ‘traditional’ breach of confidence in the realm of personal information because it seems that the usual standard might have changed.[4] Although publication was necessary to clarify her prior statements on drug usage however the additional information such as the photographs might have been an invasion of C’s private life and in the recent Brown V Associated Newspaper Ltd, Sir Anthony Clarke MR d Sir Anthony Clarke MR  held that: ‘… whether any piece of information qualifies as private and the claimant has a reasonable expectation of privacy in respect of it, requires a detailed examination of all the circumstances on a case by case basis.’ Relevant circumstances to examine are the nature of the information, the circumstances in which it has been conveyed or obtained and the connection between the person of relevance and the information. Although it remains unclear how the English courts’ test of ‘reasonable expectation of privacy’ is to be reconciled with the ECtHR’s decision in Von Hannover V Germany, which validates a wider explanation of Art 8 implying that any publication of an unauthorized photograph specifically taken of a particular person engaged in an everyday activity outside their official duties will involve a prima facie violation’. ‘Confidential’ information should be ‘private’ or out of reach from the public domain for instance where C had authorised photographs to be taken by a magazine (OK!) thus they were incapable of obtaining an interlocutory injunction, regardless of how it was obtained for financial gains in the Douglas v Hello! Ltd. The rationale of introducing the obligation might be that the person knows or ought to know that the information is ‘private’. The court would try to balance the clashing Art 8 and 10 rights of the defendant’s public interest’ defence which role and scope was impacted by the HRA. earlier cases following the HRA, the trend was towards a more lenient definition of what initiates a ‘public interest[5]‘. There has been a debate on the role of invasion in determining the misuse of private information. [6] This will be illustrated in the PJS v Newspaper, C had an extra marital affair with AB for a while but this affair came to its ending right after AB’s sexual encounter with PJS partner. In 2016 his partners intended to sell their story to Sunday newspaper. C and his wife were both popular celebrities with young children. They were pursuit of ways to stop the newspaper from publishing the story, and claimed that it would be a misuse of private information and an actionable breach of confidence and to grant an interim injunction a reasonable expectation of privacy could be established for this information, if any This was incorrect because Re S is clear that ‘Art 8 nor Art 10 of the convention has presumptive priority’ It made another mistake by highlighting that there was a ‘limited public interest’ in the expression at stake. This CoA had stated that the press has a given right to criticise morally incorrect behaviour, even though it is not illegal, But Lord Mance argued that ‘criticism of conducts cannot be a pretext for invasion of privacy by disclosure of alleged sexual infidelity which is of no real public interest in legal sense’. [7]

Lastly, in developing the privacy law, the verdict in PJS has shown that the judges might be willing to take privacy laws seriously, but there is still a debate if this invasion doctrine will take the law. [8] 

A separate tort of privacy will allow its interests to be addressed in a straightforward and more productive manner than breach of confidence. Asides the disclosure of private information it is uncertain what other ‘intrusions’ of privacy may be covered, whether a tort of privacy will lead to a more comprehensive scope of privacy that is presently the case under Breach of confidence depends on the scope of the tort recognised. Thus in New Zealand the CoA in Hosking v Runting shed light on the tort of privacy rather than develop an action for breach of confidence, in line with the English court. The court defined the tort as ‘relating to a wrongful publicity of private facts’. Gaunt and Blanchard JJ claimed that either way the same result would have been derived either by a privacy or the breach of confidence path. However, the former was preferred because it might be ‘conducive of clearer analysis’.  Arguably, even if a privacy law is narrow, relatively new and offers the same ground of protection as the breach of confidence, the development of privacy offers further expansion possibilities. In Hosking v Runting the court did not eliminate a tortious solution for ‘unreasonable intrusion into a person’s solitude or seclusion’ but simply paved way for the issue for another time. A tort of privacy might provide lucidity and greater protection in awarding damages, as their difficulties associated with awarding damages for breach of equitable obligation of confidence. In keeping with the shifts that may have occurred post HRA era, the tort of privacy, specifically the misuse of private information would be of importance.  The eradicated second limb of Coco v Clark, about the personal and private information and the emphasis on ‘private’ information to establish a duty of non-disclosure and the willingness of the court to award damages for mental distress may point towards the action of privacy instead of the breach of confidence. Sadly, the judicial doubt concerning the nature of the cause of action persists.  The CoA in Douglas V Hello expressed disappointment at constantly having to ‘shoe horn’ privacy into the breach of confidence, whilst simultaneously repeating the nature of the actionable breach of confidence. Acknowledging the tort of privacy could assist the in courts to identifying damages to deter and punish ‘offensive and surreptitious journalism for financial gains.[9]

Alas, the HRA is an essential part of domestic protection of human rights, However the likelihood of it being nullified along with the pessimistic attitude toward, international agreements such as the convention and the treaties of the EU is bothersome concerning the future of the protection of the human rights in the UK because it is unclear if its current legislation will still offer protection for human rights now that Brexit has occurred. Per Google v. Vidal Hall, ‘there are now two separate and distinct causes of action: an action for breach of confidence; and one for misuse of private information’. The changes to the breach of confidence has through engagement of the rights and jurisprudence of the Convention led to the formation of a ‘domestic privacy right’ and understanding it on a case by case basis whilst trying to maintain the ‘domestic’ norm. However the courts are struggling till date to apply ‘domestic’ law,  and realistically If courts have and are still in the process of expanding the common law, then maybe no legislative incorporation of the Convention is needed.[10]

Trade secrets, are valued assets, it plays a vital role in commercial growth and advancing innovation[11]. The aim of the trade secret directive is to harmonize vital points of the civil trade protection in the EU by providing monotonous definitions and requirements including minimal procedural standards. The international framework is shaped by Art. 39 TRIPS,15 which grants ‘‘undisclosed information’’ protection against unfair competition ‘‘as provided in Article 10bis of the Paris Convention’’,16 meaning that protection is afforded against conduct contrary to ‘‘honest business practices’’.17 Under the framework that a suitable information has an economic value as it is confidential.[12]  Thus, In Avery Dennison Corp. v. Four Pillars Enter. Co., an employee stole “Avery’s formulas and other confidential information for eight years and passed them on to Four Pillars,” which, in turn, modified Avery’s formulas, created new products, and saved significantly on research and streamlining its manufacturing process”. The court stated that although D changed the trade secret this does not release it from its liability. ‘The necessity of good faith and honest, fair dealing, is the very life and spirit of the commercial world.” [13]  The EU commission issued a proposed trade secret directive on the 28^th November 2013, and the EU directive on the protection of trade secrets commenced on the 5^th July 2016. Across the European union the directive will harmonize the trade secret law. It explains what might embody a protectable trade secrets sets of common remedies for the misappropriation of trade secret. Member states of the EU have till the 9^th June 2018 to execute the directive into the UK law, however it might override the legislation prior to Brexit if the WTO model is approved. [14]

This essay has discussed if the breach of confidence is superfluous and is likely to wither on the judicial vine with the use of key elements of the breach of confidence, the continually changing misuse of private information and the uncertainty of the HRA’s future along with UK’s human rights protection post brexit and lastly the trade directives.  Lastly, it appears the breach of confidential is slowly fading away as more of the time it is adjusted to fit into the privacy law rather than the breach of confidence. 

BIBLIOGRAPHY

Aplin T, ‘The Future Of Breach Of Confidence And The Protection Of Privacy’ (2007) 7 Oxford University Commonwealth Law Journal

Falce V, ‘Trade Secrets – Looking For (Full) Harmonization In The Innovation Union’ (2015) 46 IIC – International Review of Intellectual Property and Competition Law

Fikfak V, ‘Protecting Human Rights In Austerity Claims In The UK’ [2016] SSRN Electronic Journal

Natalja S, ‘EU Directive Proposal : Trade Secrets’ (2016) 20 Marquette intellectual property law review

Patel A and others, ‘The Global Harmonization Of Trade Secret Law: The Convergence Of Protections For Trade Secret Information In The United States And European Union’ (2016) 83 Defense Counsel Journal

Traub F, ‘What Next For Intellectual Property Rights?’ (2017) 36 The licensing journal

Wragg P, ‘Privacy And The Emergent Intrusion Doctrine’ (2017) 9 Journal of Media Law

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[1] Tanya Aplin, ‘The Future of Breach of Confidence and The Protection Of Privacy’ (2007) 7 Oxford University Commonwealth Law Journal. (p. 139)

[2] Veronika Fikfak, ‘Protecting Human Rights in Austerity Claims in The UK’ [2016] SSRN Electronic Journal. (p. 221)

[3]   Coco v Clark [1969] R.P.C 41  ,Campbell v Mirror groups Newspaper Ltd [2004] UKHL 22,

Tanya Aplin, ‘The Future of Breach of Confidence and The Protection Of Privacy’ (2007) 7 Oxford University Commonwealth Law Journal. (p. 139)

[4]  Tanya Aplin, ‘The Future of Breach of Confidence and The Protection Of Privacy’ (2007) 7 Oxford University Commonwealth Law Journal (p.152)

[5] Douglas v Hello! Ltd [2005] EWCA Civ 59 , Tanya Aplin, ‘The Future of Breach of Confidence and The Protection Of Privacy’ (2007) 7 Oxford University Commonwealth Law Journal.

[6] Paul Wragg, ‘Privacy And The Emergent Intrusion Doctrine’ (2017) 9 Journal of Media Law (p.15).

[7] ibid (p.19)

[8] ibid (p.26)

[9] Tanya Aplin, ‘The Future of Breach of Confidence and The Protection Of Privacy’ (2007) 7 Oxford University Commonwealth Law Journal (p. 152- 159)

[10] Veronika Fikfak, ‘Protecting Human Rights in Austerity Claims in the UK’ [2016] SSRN Electronic Journal. (p.221)

[11] it protects technical information such as fragrance ingredients and non-technical information such as a sales list.   Sosnova Natalja, ‘EU Directive Proposal: Trade Secrets’ (2016) 20 Marquette intellectual property law review. (p.47)

[12]  Valeria Falce, ‘Trade Secrets – Looking For (Full) Harmonization In The Innovation Union’ (2015) 46 IIC – International Review of Intellectual Property and Competition Law.

[13] Sosnova Natalja, ‘EU Directive Proposal: Trade Secrets’ (2016) 20 Marquette intellectual property law review. (p.57)

[14] Florian Traub, ‘What Next For Intellectual Property Rights?’ (2017) 36 The licensing journal. (p.12)