Confidential
Information
Cameron Stewart
The obligation
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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 plaintiff’s rights.
What is confidential information?
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the myriad ways obligations of confidence
The phrase is best viewed as a term that covers
information that is subject to an obligation of
confidentiality.
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 confidence
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Property origins –
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Franklin v Giddins [1978] Qd R 72
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Krueger Transport Equipment Pt Ltd v Glen Cameron Storage
[2008] FCA 803
OBG Ltd v Allan [2008] 1 AC 1
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Contract origins –
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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 confidence
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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
177
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Human rights?
Unjust enrichment?
Equitable origins in conscience
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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.
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Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2)
(1984) 156 CLR 414 at 437–8 per Deane J
The modern doctrine of breach of
confidence
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Coco v A N Clark (Engineers) Ltd
The modern doctrine of breach of
confidence
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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’
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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’
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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
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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 player’s 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 player’s identities.
Personal information
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Prince Albert v Strange
Personal information
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marital and defacto relations
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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
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Personal information
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Diaries
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Medical history
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X v Y [1988] 2 All ER 648
Campbell v MGN Ltd [2004] UKHL 22.
Witnesses and informants
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Prince of Wales v Associated Newspapers
McKennitt v Ash [2008] QB 73
Venables v News Group Newspapers Ltd [2001] 1 All ER 908
Rogers v TVNZ [2007] NZSC 91
Cultural and religious information
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Foster v Mountford & Rigby Ltd
Church of Scientology of California v Kaufman [1973] RPC 635
Commercial information
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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
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Faccenda Chicken Ltd v Fowler
1.trivial information, which is publicly available or so
obvious that it cannot be protected;
 2.information that must be treated confidentially
until the termination of employment, whereupon it
becomes part of the ex-employee’s collective skill,
knowledge and ability; or
 3.highly confidential trade secrets, which will be
protected by the courts even after the termination of
employment.
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Commercial information
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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 plaintiff’s 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
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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 confidential.
8. The fact that the usages and practices of the industry support the
assertions of confidentiality.
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 identified.
Commercial information
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Hodgson JA
[W]here 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 relief.
Government secrets
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Commonwealth v John Fairfax & Sons, at CLR 51
Attorney-General (UK) v Heinemann Publishers
Australia Pty Ltd
Government secrets
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Semi-govt? British Steel Corp v Granada Television
Ltd [1981] AC 1096
Esso Resources Ltd v Plowman (1995) 183 CLR 10
at 32
Soldiers? ‘R’ v Attorney-General [2003] UKPC 22
Ministry of Defence v Griffin [2008] EWHC 1542
The duty or obligation of confidence
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Coco v A N Clark (Engineers) Ltd
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Express Obligation
Implied Obligation
 Hitchcock v TCN Channel Nine Pty Ltd (No 2)
[2000] NSWCA 82.
Unsolicited communications
Misappropriation of information
Eavesdroppers
Third parties
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Establishing a breach
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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
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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
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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 confider’s purpose in supplying the
information. The confider’s purpose was said to
be irrelevant when the information was
anonymous
Establishing a breach
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Detriment?
Defences
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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
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Defences
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
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Remedies
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Injunctions
The springboard doctrine
Delivery-Up
Equitable compensation
Harris v Digital Pulse Pty Ltd
 Giller v Procopets
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Account of profits
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Attorney-General (UK) v Blake
Constructive trusts
The future — rights to privacy?
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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
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Developments in New Zealand and
England
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Bradley v Wingnut Films [1993] 1 NZLR 415
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Hosking v Runting [2004] NZCA 34
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Douglas v Hello! Ltd
MAX MOSLEY v NEWS GROUP
NEWSPAPERS LIMITED
SIR ELTON JOHN v
ASSOCIATED NEWSPAPERS LTD
DAVID MURRAY (by his litigation friends
NEIL MURRAY and JOANNE MURRAY)
v BIG PICTURES (UK) LIMITED
Australia?
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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