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Confidential Information

Confidential Information. Cameron Stewart. The obligation. Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 213:

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Confidential Information

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  1. Confidential Information Cameron Stewart

  2. The obligation • 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.

  3. What is confidential information? • 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.

  4. The origins of the action for breach of confidence • Property origins – • Franklin v Giddins [1978] Qd R 72 • Krueger Transport Equipment Pt Ltd v Glen Cameron Storage [2008] FCA 803 • OBG Ltd v Allan [2008] 1 AC 1 • Contract origins – • 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

  5. The origins of the action for breach of confidence • 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 • Human rights? • Unjust enrichment?

  6. Equitable origins in conscience • 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. • Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 437–8 per Deane J

  7. The modern doctrine of breach of confidence • Coco v A N Clark (Engineers) Ltd

  8. The modern doctrine of breach of confidence • 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.

  9. Information that has a ‘confidential quality’ • 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.

  10. Information that has a ‘confidential quality’ • 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 .

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

  12. Personal information • Prince Albert v Strange

  13. Personal information • marital and defacto relations • 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

  14. Personal information • Diaries • Prince of Wales v Associated Newspapers • McKennitt v Ash [2008] QB 73 • Medical history • X v Y [1988] 2 All ER 648 • Campbell v MGN Ltd [2004] UKHL 22. • Witnesses and informants • Venables v News Group Newspapers Ltd [2001] 1 All ER 908 • Rogers v TVNZ [2007] NZSC 91 • Cultural and religious information • Foster v Mountford & Rigby Ltd • Church of Scientology of California v Kaufman [1973] RPC 635

  15. Commercial information • 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.

  16. Commercial information • 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.

  17. Commercial information • 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.

  18. Commercial information • 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.

  19. Commercial information • 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.

  20. Government secrets • Commonwealth v John Fairfax & Sons, at CLR 51 • Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd

  21. Government secrets • 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

  22. The duty or obligation of confidence • Coco v A N Clark (Engineers) Ltd • Express Obligation • Implied Obligation • Hitchcock v TCN Channel Nine Pty Ltd (No 2) [2000] NSWCA 82. • Unsolicited communications • Misappropriation of information • Eavesdroppers • Third parties

  23. Establishing a breach • 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.

  24. Establishing a breach • 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

  25. Establishing a breach • 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

  26. Establishing a breach • Detriment?

  27. Defences • 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

  28. 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

  29. Remedies • Injunctions • The springboard doctrine • Delivery-Up • Equitable compensation • Harris v Digital Pulse Pty Ltd • Giller v Procopets • Account of profits • Attorney-General (UK) v Blake • Constructive trusts

  30. The future — rights to privacy? • 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

  31. Developments in New Zealand and England • Bradley v Wingnut Films [1993] 1 NZLR 415 • Hosking v Runting[2004] NZCA 34 • Douglas v Hello! Ltd

  32. MAX MOSLEY v NEWS GROUP NEWSPAPERS LIMITED

  33. SIR ELTON JOHN v ASSOCIATED NEWSPAPERS LTD

  34. DAVID MURRAY (by his litigation friends NEIL MURRAY and JOANNE MURRAY)v BIG PICTURES (UK) LIMITED

  35. Australia? • 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

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