Confidence and privacy

By Legal Eagle

I went to an interesting seminar the other day on breach of confidence law. The seminar included a number of speakers and spanned Australian, UK and US law on the subject, as well as a historical consideration of the piecemeal manner in which breach of confidence law developed.

Apparently breach of confidence was a relative latecomer into the equitable stable of actions, and arose from common law copyright cases and cases involving family medicines and cures.

However, UK breach of confidence law is changing from its historical origins because of the European Convention on Human Rights (ECHR). The British Parliament enacted a statute in 1998 which brought the ECHR into English law. Relevantly, Article 8 of the ECHR states:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This must be balanced against the terms of Article 10, which state:

1. 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. …

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In the recent case of Mosely v News Group Newspapers Limited [2008] EWHC 1777 (QB), Eady J confirmed (as per Campbell v MGN Ltd [2004] 2 AC 457) that courts applying UK breach of confidence law must take into account these values when making decisions about disputes between individuals, or between an individual and a non-governmental body such as a newspaper.

The UK test for breach of confidence is thus a two-stage test:

  1. Did the plaintiff have a reasonable expectation of privacy, and thus is Article 8 of the ECHR engaged?
  2. Is there a countervailing right of freedom of communication under Article 10 of the ECHR?

At [10] in Mosely, Eady J explained:

In the present context, for example, it has to be accepted that any rights of free expression…must no longer be regarded as simply “trumping” any privacy rights that may be established on the part of the Claimant. Language of that kind is no longer used. Nor can it be said, without qualification, that there is a “public interest that the truth should out”: cf. Fraser v Evans [1969] 1 QB 349, 360F-G, per Lord Denning MR.

Eady J continued at [14]:

This “ultimate balancing test” has been recognised as turning to a large extent upon proportionality… . The judge will often have to ask whether the intrusion, or perhaps the degree of the intrusion, into the claimant’s privacy was proportionate to the public interest supposedly being served by it.

However, the lineaments of “old” breach of confidence law still emerge from behind the “new” extended breach of confidence law, as the courts have indicated that they look at the wider context in which the confidential information was disclosed.

It seems in any case that UK breach of confidence law is edging into the territory of breach of privacy law. However, because of its origins in breach of confidence law, there must be a disclosure of information to trigger the action. Another kind of breach of privacy (such as a neighbour filming you over the fence) cannot be dealt with by breach of privacy law. One of the speakers who had been involved with the NSWLRC report on Privacy Law said that the phenomenon of one neighbour allegedly filming another neighbour without authorisation was amazingly prevalent.

Technically speaking, however, the “new” UK breach of confidence law has only been found to extend to private information, but apparently this might change with a recent European Court of Justice decision which extends the reach of Article 8 of the ECHR.

Australian law may also be edging into a situation where breach of confidence law can act as a de facto breach of privacy law in some circumstances. The case of Giller v Procopets was discussed at the seminar. (I’ve already outlined this case in a post here. I’ve also briefly discussed the ALRC report on Privacy Law too.) In Giller v Procopets, the Victorian Court of Appeal accepted UK case law at least insofar as it concerned the extension of breach of confidence to emotional distress. The High Court of Australia apparently recently refused special leave.

We also heard about some interesting US cases involving breach of confidence and medical records. Breach of confidence has a shorter history in the US, but it seems from these cases that it is relatively robust. Interestingly, there has been no consideration of how the doctrine of breach of confidence interacts with the First Amendment yet.

(Special thanks to Megan Richardson, Michael Bryan, Tanya Aplin, Nicole Moreham, Michael Rivette, Michael Tilbury and Brian Murchison for sharing their insights).

One Comment

  1. Posted December 7, 2009 at 10:03 pm | Permalink

    Ah yes, Eady J… the man the Red Tops love to hate.

3 Trackbacks

  1. By skepticlawyer » Bloggers, journalists and the law on January 15, 2010 at 6:08 pm

    […] maintain freedom of speech. This would also be paralleled by a tort of invasion of privacy (which, as discussed previously, is what the breach of confidence law is edging into […]

  2. […] in ABC v Lenah Game Meats and by the Victorian Court of Appeal in Giller v Procopets (see also post here). If there was such a tort, it may have been breached in the […]

  3. By Skepticlawyer » Be civil, or be silent on April 7, 2011 at 4:39 pm

    […] various points since we founded this blog, both Legal Eagle and I have written about defamation, confidential information and privacy and how they intersect. We’ve also both discussed how respecting different social […]

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