Confidential Confidential InformationInformation

Cameron StewartCameron Stewart

The obligationThe obligation

Saltman Engineering Co Ltd v Campbell Saltman Engineering Co Ltd v Campbell Engineering Co Ltd Engineering Co Ltd (1948) 65 RPC 203 (1948) 65 RPC 203 at 213:at 213:

If a defendant is proved to have used If a defendant is proved to have used confidential information, directly or confidential information, directly or indirectly obtained from a plaintiff, indirectly obtained from a plaintiff, without the consent, express or implied, without the consent, express or implied, of the plaintiff, he will be guilty of an of the plaintiff, he will be guilty of an infringement of the plaintiff’s rights. infringement of the plaintiff’s rights.

What is confidential What is confidential information? information?

the myriad ways obligations of the myriad ways obligations of confidence confidence

The phrase is best viewed as a term that The phrase is best viewed as a term that covers information that is subject to an covers information that is subject to an obligation of confidentiality.obligation of confidentiality.

What sorts of relationships give rise to What sorts of relationships give rise to obligations of confidence? Confidences obligations of confidence? Confidences arise in three sorts of relationships: arise in three sorts of relationships: private confidences, confidences private confidences, confidences relating to government secrets, and relating to government secrets, and commercial confidences. commercial confidences.

The origins of the action for The origins of the action for breach of confidence breach of confidence

Property origins – Property origins – Franklin v GiddinsFranklin v Giddins [1978] Qd R 72 [1978] Qd R 72 Krueger Transport Equipment Pt Ltd v Glen Krueger Transport Equipment Pt Ltd v Glen

Cameron StorageCameron Storage [2008] FCA 803 [2008] FCA 803 OBG Ltd v AllanOBG Ltd v Allan [2008] 1 AC 1 [2008] 1 AC 1

Contract origins – Contract origins – Deta Nominees Pty Ltd v Viscount Plastic Deta Nominees Pty Ltd v Viscount Plastic

Products Pty LtdProducts Pty Ltd [1979] VR 167 [1979] VR 167 Seager v Copydex LtdSeager v Copydex Ltd [1967] 2 All ER 415 [1967] 2 All ER 415 Ministry of Defence v GriffinMinistry of Defence v Griffin [2008] EWHC [2008] EWHC

15421542

The origins of the action for The origins of the action for breach of confidence breach of confidence

Tort origins – economic torts or Tort origins – economic torts or fusion fallacy?fusion fallacy? Campbell v Mirror Group Newspapers Campbell v Mirror Group Newspapers

LtdLtd [2004] 2 AC 457 [2004] 2 AC 457 Mosley v News Group Newspapers LtdMosley v News Group Newspapers Ltd

[2008] EWHC 177[2008] EWHC 177 Human rights?Human rights? Unjust enrichment?Unjust enrichment?

Equitable origins in Equitable origins in conscience conscience

Like most heads of exclusive equitable Like most heads of exclusive equitable jurisdiction, its rational basis does not lie jurisdiction, its rational basis does not lie in proprietary right. It lies in the notion in proprietary right. It lies in the notion of an obligation of conscience arising of an obligation of conscience arising from the circumstances in or through from the circumstances in or through which the information was which the information was communicated or obtained. communicated or obtained.

Moorgate Tobacco Co Ltd v Philip Morris Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) Ltd (No 2) (1984) 156 CLR 414 at 437–8 (1984) 156 CLR 414 at 437–8 per Deane Jper Deane J

The modern doctrine of The modern doctrine of breach of confidence breach of confidence

Coco v A N Clark (Engineers) LtdCoco v A N Clark (Engineers) Ltd

The modern doctrine of The modern doctrine of breach of confidence breach of confidence

Coco v A N Clark (Engineers) LtdCoco v A N Clark (Engineers) Ltd, Megarry J :, Megarry J :

In my judgment, three elements are normally In my judgment, three elements are normally required if, apart from contract, a case of breach required if, apart from contract, a case of breach of confidence is to succeed. First, the information of confidence is to succeed. First, the information itself, in the words of Lord Greene MR in the itself, in the words of Lord Greene MR in the Saltman case on page 215, must ‘have the Saltman case on page 215, must ‘have the necessary quality of confidence about it.’ necessary quality of confidence about it.’ Secondly, that information must have been Secondly, that information must have been imparted in circumstances importing an imparted in circumstances importing an obligation of confidence. Thirdly, there must be obligation of confidence. Thirdly, there must be an unauthorised use of that information to the an unauthorised use of that information to the detriment of the party communicating it.detriment of the party communicating it.

Information that has a Information that has a ‘confidential quality’ ‘confidential quality’

Secrecy and the public domainSecrecy and the public domain Lucasfilm Ltd v AinsworthLucasfilm Ltd v Ainsworth [2008] [2008]

EWHC 1878 EWHC 1878 Lennon v News Group Newspapers Lennon v News Group Newspapers

LtdLtd [1978] FSR 573, John Lennon [1978] FSR 573, John Lennon failed to prevent his former wife from failed to prevent his former wife from publishing secrets of their married publishing secrets of their married life, on the basis that he had himself life, on the basis that he had himself published information on the topic.published information on the topic.

Information that has a Information that has a ‘confidential quality’ ‘confidential quality’

Transitory publication - a Chinese Transitory publication - a Chinese pop star was successful in pop star was successful in restraining the publication of an restraining the publication of an embarrassing video tape on the embarrassing video tape on the Internet, even after a verbal account Internet, even after a verbal account of the contents had been published of the contents had been published in a Hong Kong newspaper in a Hong Kong newspaper Kwok v Kwok v Thang Thang [1999] NSWSC 1034[1999] NSWSC 1034

G v DayG v Day [1982] 1 NSWLR 24 . [1982] 1 NSWLR 24 .

Australian Football Australian Football League v Age Company League v Age Company Ltd Ltd (2007) 15 VR 405(2007) 15 VR 405 3 AFL players who had tested positive to drugs 3 AFL players who had tested positive to drugs

were identified on an internet discussion forum. were identified on an internet discussion forum. An electronic newspaper article had also named An electronic newspaper article had also named

the players to a limited group of subscribers for the players to a limited group of subscribers for about 5 hrs. about 5 hrs.

A further publication of one of the player’s A further publication of one of the player’s names had occurred when a phone caller named names had occurred when a phone caller named the player on the ‘Fox Footy’ television program. the player on the ‘Fox Footy’ television program.

Regardless, Kellam J found that the information Regardless, Kellam J found that the information had still not yet fully entered the public domain had still not yet fully entered the public domain and remained confidential. A permanent and remained confidential. A permanent injunction was ordered on the release of the injunction was ordered on the release of the player’s identities.player’s identities.

Personal informationPersonal information

Prince Albert v StrangePrince Albert v Strange

Personal informationPersonal information

marital and defacto relationsmarital and defacto relations Giller v ProcopetsGiller v Procopets

sexual preference and activity sexual preference and activity Stephens v AveryStephens v Avery A v B (a company) A v B (a company) [2002] 2 All ER 545[2002] 2 All ER 545 Theakston v Mirror Group Newspapers LtdTheakston v Mirror Group Newspapers Ltd [2002] [2002]

EWHC 137EWHC 137 Mosley v News Group NewspapersMosley v News Group Newspapers A v B plc A v B plc [2003] QB 195[2003] QB 195 Brown v Associated Newspapers LtdBrown v Associated Newspapers Ltd [2008] QB 103 [2008] QB 103

Personal informationPersonal information DiariesDiaries

Prince of Wales v Associated NewspapersPrince of Wales v Associated Newspapers McKennitt v AshMcKennitt v Ash [2008] QB 73 [2008] QB 73

Medical historyMedical history X v Y X v Y [1988] 2 All ER 648 [1988] 2 All ER 648 Campbell v MGN LtdCampbell v MGN Ltd [2004] UKHL 22. [2004] UKHL 22.

Witnesses and informantsWitnesses and informants Venables v News Group Newspapers LtdVenables v News Group Newspapers Ltd

[2001] 1 All ER 908 [2001] 1 All ER 908 Rogers v TVNZRogers v TVNZ [2007] NZSC 91 [2007] NZSC 91

Cultural and religious informationCultural and religious information Foster v Mountford & Rigby LtdFoster v Mountford & Rigby Ltd Church of Scientology of California v KaufmanChurch of Scientology of California v Kaufman

[1973] RPC 635[1973] RPC 635

Commercial informationCommercial information Trade secrets or know-how?Trade secrets or know-how? Ansell Rubber Co Pty Ltd v Allied Rubber Ansell Rubber Co Pty Ltd v Allied Rubber

Industries Pty LtdIndustries Pty Ltd (1) the extent to which the information is (1) the extent to which the information is

known outside of his business; (2) the extent to known outside of his business; (2) the extent to which it is known by employees and others which it is known by employees and others involved in his business; (3) the extent of involved in his business; (3) the extent of measures taken by him to guard the secrecy of measures taken by him to guard the secrecy of the information; (4) the value of the the information; (4) the value of the information to him and to his competitors; (5) information to him and to his competitors; (5) the amount of effort or money expended by him the amount of effort or money expended by him in developing the information; (6) the ease or in developing the information; (6) the ease or difficulty with which the informa tion could be difficulty with which the informa tion could be properly acquired or duplicated by others.properly acquired or duplicated by others.

Commercial informationCommercial information Faccenda Chicken Ltd v FowlerFaccenda Chicken Ltd v Fowler

1.trivial information, which is publicly 1.trivial information, which is publicly available or so obvious that it cannot be available or so obvious that it cannot be protected;protected;

2.information that must be treated 2.information that must be treated confidentially until the termination of confidentially until the termination of employment, whereupon it becomes part of employment, whereupon it becomes part of the ex-employee’s collective skill, the ex-employee’s collective skill, knowledge and ability; orknowledge and ability; or

3.highly confidential trade secrets, which 3.highly confidential trade secrets, which will be protected by the courts even after will be protected by the courts even after the termination of employment.the termination of employment.

Commercial informationCommercial information Del Casale v Artedomus (Aust) Pty Limited Del Casale v Artedomus (Aust) Pty Limited

[2007] NSWCA 172[2007] NSWCA 172 . The extent to which the information is . The extent to which the information is

known outside the business.known outside the business. 2. The extent to which the trade secret was 2. The extent to which the trade secret was

known by employees and others involved in known by employees and others involved in the plaintiff’s business.the plaintiff’s business.

3. The extent of measures taken to guard the 3. The extent of measures taken to guard the secrecy of the information.secrecy of the information.

4. The value of the information to the 4. The value of the information to the plaintiffs and their competitors.plaintiffs and their competitors.

5. The amount of effort or money expended by 5. The amount of effort or money expended by the plaintiffs in developing the information.the plaintiffs in developing the information.

Commercial informationCommercial information 6. The ease or difficulty with which the information 6. The ease or difficulty with which the information

could be properly acquired or duplicated by others.could be properly acquired or duplicated by others. 7. Whether it was plainly made known to the employee 7. Whether it was plainly made known to the employee

that the material was by the employer as confidential.that the material was by the employer as confidential. 8. The fact that the usages and practices of the 8. The fact that the usages and practices of the

industry support the assertions of confidentiality.industry support the assertions of confidentiality. 9. The fact that the employee has been permitted to 9. The fact that the employee has been permitted to

share the information only by reason of his or her share the information only by reason of his or her seniority or high responsibility.seniority or high responsibility.

10. That the owner believes these things to be true 10. That the owner believes these things to be true and that belief is reasonable.and that belief is reasonable.

11. The greater the extent to which the “confidential” 11. The greater the extent to which the “confidential” material is habitually handled by an employee, the material is habitually handled by an employee, the greater the obligation of the confidentiality imposed.greater the obligation of the confidentiality imposed.

12. That the information can be readily identified.12. That the information can be readily identified.

Commercial informationCommercial information Hodgson JAHodgson JA [W]here the confidential information is [W]here the confidential information is

something that is ascertainable by enquiry something that is ascertainable by enquiry or experiment, albeit perhaps substantial or experiment, albeit perhaps substantial enquiry or experiment, and the know-how enquiry or experiment, and the know-how which the ex-employee is clearly entitled which the ex-employee is clearly entitled to use extends to knowledge of the to use extends to knowledge of the question which the confidential question which the confidential information answers, it becomes artificial information answers, it becomes artificial to treat the confidential information as to treat the confidential information as severable and distinguishable from that severable and distinguishable from that know-how; and in that kind of case, courts know-how; and in that kind of case, courts have tended not to grant relief.have tended not to grant relief.

Government secretsGovernment secrets

Commonwealth v John Fairfax & Commonwealth v John Fairfax & SonsSons, at CLR 51, at CLR 51

Attorney-General (UK) v Heinemann Attorney-General (UK) v Heinemann Publishers Australia Pty LtdPublishers Australia Pty Ltd

Government secretsGovernment secrets

Semi-govt?Semi-govt? British Steel Corp v British Steel Corp v Granada Television Ltd Granada Television Ltd [1981] AC [1981] AC 10961096

Esso Resources Ltd v PlowmanEsso Resources Ltd v Plowman (1995) (1995) 183 CLR 10 at 32183 CLR 10 at 32

Soldiers? Soldiers? ‘R’ v Attorney-General ‘R’ v Attorney-General [2003] UKPC 22[2003] UKPC 22

Ministry of Defence v GriffinMinistry of Defence v Griffin [2008] [2008] EWHC 1542EWHC 1542

The duty or obligation of The duty or obligation of confidence confidence

Coco v A N Clark (Engineers) LtdCoco v A N Clark (Engineers) Ltd Express ObligationExpress Obligation Implied ObligationImplied Obligation

Hitchcock v TCN Channel Nine Pty Hitchcock v TCN Channel Nine Pty Ltd (No 2)Ltd (No 2) [2000] NSWCA 82. [2000] NSWCA 82.

Unsolicited communicationsUnsolicited communications Misappropriation of informationMisappropriation of information EavesdroppersEavesdroppers Third partiesThird parties

Establishing a breachEstablishing a breach The test which has found widespread The test which has found widespread

acceptance is whether or not the infor mation acceptance is whether or not the infor mation was disclosed for a limited purpose. If the was disclosed for a limited purpose. If the information was disclosed for a limited purpose, information was disclosed for a limited purpose, the confidence crystallises around that limited the confidence crystallises around that limited purpose. The confidant will be bound by an purpose. The confidant will be bound by an obligation the content of which is not to use or obligation the content of which is not to use or disclose the information for any purpose other disclose the information for any purpose other than the limited one for which the information than the limited one for which the information was imparted. -was imparted. -

F Gurry, ‘Breach of Confidence’ in P Finn (ed), F Gurry, ‘Breach of Confidence’ in P Finn (ed), Essays in EquityEssays in Equity,, 1985.1985.

Establishing a breachEstablishing a breach

Smith Kline and French Laboratories Smith Kline and French Laboratories (Aust) Ltd v Secretary, Dept of (Aust) Ltd v Secretary, Dept of Community Services & HealthCommunity Services & Health

Whether one adopts the ‘reasonable Whether one adopts the ‘reasonable man’ test suggested by Megarry J or man’ test suggested by Megarry J or some other, there can be no breach of some other, there can be no breach of the equitable obligation unless the court the equitable obligation unless the court concludes that a confidence reposed has concludes that a confidence reposed has been abused, that unconscien tious use been abused, that unconscien tious use has been made of the information has been made of the information

Establishing a breachEstablishing a breach

R v Department of Health; Ex parte R v Department of Health; Ex parte Source Informatics LtdSource Informatics Ltd

The Court of Appeal found that the The Court of Appeal found that the pharmacists would not breach confi pharmacists would not breach confi dence if they supplied anonymised dence if they supplied anonymised information, even though this went information, even though this went beyond the confider’s purpose in beyond the confider’s purpose in supplying the information. The confider’s supplying the information. The confider’s purpose was said to be irrelevant when purpose was said to be irrelevant when the information was anonymous the information was anonymous

Establishing a breachEstablishing a breach

Detriment?Detriment?

DefencesDefences

Public interestPublic interest expose dangers to public safety or expose dangers to public safety or

health health Hubbard v VosperHubbard v Vosper W v EdgellW v Edgell Lion Laboratories Ltd v EvansLion Laboratories Ltd v Evans Woodward v HutchinsWoodward v Hutchins McKennitt v AshMcKennitt v Ash [2005] EWHC 3003 [2005] EWHC 3003 Richards v KadianRichards v Kadian [2005] NSWCA 328 [2005] NSWCA 328

DefencesDefences

Forced disclosureForced disclosure DelayDelay Clean handsClean hands

Campbell v Mirror Group Campbell v Mirror Group Newspapers LtdNewspapers Ltd

Australian Football League v Age Australian Football League v Age Company Ltd Company Ltd (2007) 15 VR 405(2007) 15 VR 405

Change of positionChange of position

Remedies Remedies

InjunctionsInjunctions The springboard doctrineThe springboard doctrine Delivery-UpDelivery-Up Equitable compensationEquitable compensation

Harris v Digital Pulse Pty LtdHarris v Digital Pulse Pty Ltd Giller v ProcopetsGiller v Procopets

Account of profitsAccount of profits Attorney-General (UK) v BlakeAttorney-General (UK) v Blake

Constructive trusts Constructive trusts

The future — rights to The future — rights to privacy? privacy?

No right of privacyNo right of privacy Victoria Park Racing & Recreation Victoria Park Racing & Recreation

Grounds Co Ltd v TaylorGrounds Co Ltd v Taylor Australian Consolidated Press Ltd v Australian Consolidated Press Ltd v

EttingshausenEttingshausen Kaye v RobertsonKaye v Robertson (1991) FSR 62 (1991) FSR 62

Developments in New Developments in New Zealand and England Zealand and England

Bradley v Wingnut FilmsBradley v Wingnut Films [1993] [1993] 1 NZLR 4151 NZLR 415

Hosking v RuntingHosking v Runting [2004] NZCA 34[2004] NZCA 34 Douglas v Hello! LtdDouglas v Hello! Ltd

MAX MOSLEY v NEWS GROUP MAX MOSLEY v NEWS GROUP NEWSPAPERS LIMITEDNEWSPAPERS LIMITED

SIR ELTON JOHN v SIR ELTON JOHN v ASSOCIATED ASSOCIATED

NEWSPAPERS LTDNEWSPAPERS LTD

DAVID MURRAY (by his litigation DAVID MURRAY (by his litigation friends NEIL MURRAY and friends NEIL MURRAY and

JOANNE MURRAY)JOANNE MURRAY)v BIG PICTURES (UK) LIMITEDv BIG PICTURES (UK) LIMITED

Australia?Australia?

Bathurst City Council v SabanBathurst City Council v Saban Kwok v Thang Kwok v Thang [1999] NSWSC [1999] NSWSC

1034 1034 Donnelly v Amalgamated Donnelly v Amalgamated

Television Services Pty LimitedTelevision Services Pty Limited (1998) 45 NSWLR 570 (1998) 45 NSWLR 570

Australian Broadcasting Corp v Australian Broadcasting Corp v Lenah Game Meats Pty LtdLenah Game Meats Pty Ltd