© The Author (2007). Published by Oxford University Press. All rights reserved
The protection of confidential information in the human rights era: two aspects
Legal context: The Human Rights Act has had an obvious impact on the law of breach of confidence as it applies to private information. Its influence on the law of confidence as it applies to commercial information has been subtle, but nevertheless significant.
Key points: Confidentiality is a relative rather than an absolute concept. Whether information is in the public domain or retains the necessary quality of confidence is a question of degree which depends on the circumstances of the case, and in particular the nature of the information. A compilation of information may be confidential even if the individual elements are in the public domain. It is a defence to a claim for breach of confidence that disclosure of the information would be in the public interest whether the clam is based on an express contractual, an implied contractual or an equitable obligation. The balance of authority favours the view that an express contractual obligation carries greater weight when balancing parties’ Convention rights than an implied contractual or equitable obligation, but it is difficult to see why this should be so. The real difference between contractual and equitable obligations is that it is possible by contract to prevent the disclosure of information that is not confidential.
Practical significance: The law continues to evolve. As matters stand parties are well advised to seek contractual protection for their confidential information.
Key Words: The tension between the quest to preserve the confidentiality of information and the desire to disseminate it is not merely expressed in terms of personal interest: the same tension is also demonstrated at a higher level of principle, where human rights in the recognition of personal privacy and enjoyment of one's possessions are in conflict with opposing human rights in the freedom to disseminate information and in the right of the public to receive information. • Case law has demonstrated the manner in which the debate has risen from personal to public level, seeking not merely to identify an acceptable balance between competing and often incompatible interests but to articulate in a principled and legally correct manner the means by which that balance is achieved. • This article examines this debate in the light of two constants: (i) the recognition of what indeed constitutes protectable subject-matter in respect of which the competing claims of confidentiality and disclosure may be raised and (ii) the nature of any relationship, whether contractual or otherwise, that exists between the party seeking to protect the confidentiality and the party who, it is alleged, is under a duty not to disclose it.
* A revised version of a paper presented to the conference, Breach of Confidence and Trade Secrets: Domestic Developments and Comparative Perspectives, Centre for Intellectual Property and Information Law, Cambridge, 17 March 2007.