Chapter 10: Breach of Confidence
| Library | Intellectual Property |
| Pages | 97-103 |
| Author | James Griffin,Jane Ying,Abhilash Nair |
The test for confidence is typically that:
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there must be information that has the necessary quality to be confidential
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the information must have been disclosed in circumstances implying an obligation of confidence.
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there must be unauthorised use of that information.
A typical test for assessing confidence is:
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the owner must be under the belief that disclosure of the information is prejudicial to his interests and advantageous to his rivals;
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the owner must believe that the information is secret and confidential;
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these two beliefs must be reasonable; and (iv) the information must be judged in the light of prevailing trade or industry usage and practices.
The usual intellectual property remedies are available for breach of confidence actions. These include injunction, account of profits, and order for delivery up.
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The law of confidence helps to protect secrets and confidential information.
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It has its origin in common law and equity.
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The Human Rights Act 1998 now offers statutory recognition to the right of privacy. However, the law of breach of confidence in the context of intellectual property is meant to protect secrets and confidential information.
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The law of confidence often acts complementary to copyright law and patent law. For example, if someone narrates the idea for a TV programme to the producer, the latter would be under an obligation not to exploit the idea without the permission of the person who narrated it, subject to certain conditions (
Fraser v Thames Television Ltd (1984)). Copyright law will not afford this protection, as ideas are not protected unless expressed in some tangible form. -
Similarly, the law of breach of confidence also helps inventors or patent applicants by imposing a duty of confidence on those whom the applicant had to describe the relevant invention prior to a formal patent application. Accordingly, the Patents Act 1977 expressly states that publication made in breach of confidence will not invalidate a patent application.
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The law of breach of confidence has been applied in personal relationships as well, such as husband and wife (
Argyll v Argyll (1967)), between friends (Stevens v Avery (1988)) and also to state secrets (Attorney-General v The Observer Ltd (1989)).
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There are three main conditions to be satisfied for imposing a duty of confidence (
Coco v AN Clark (Engineers) Ltd (1969)): -
Each of these three conditions will be analysed in further detail below.
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‘Information’ can include almost everything, irrespective of whether it is industrial, personal, political, literary or artistic.
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However, trivial information will not be protected (
Faccenda Chicken v Fowler (1986)) although this does not mean personal secrets or gossips are never covered by the law (Barrymore v News ...
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