Breach of confidence and privacy

The law of breach of confidence prevents the publication of secret information given to or obtained by a person in confidence, at the instigation of the person to whom the confidence is owed. The law can also be used to restrain a third party who comes into possession of the information. For example, where X tells Y something in confidence and Y repeats it to a newspaper, X can restrain the newspaper from disclosing the information. Many different types of information can be protected by the law e.g. trade secrets, official secrets, medical records and details of sexual relationships. In all cases, the information must be genuinely confidential.

The most important defence to an action for breach of confidence is known as "public interest". This applies where the public interest in disclosing the information outweighs the duty of confidence. It involves a balancing exercise by the court. The most common application of this defence is in the disclosure by an employee of wrongdoing by his or her employer. In such a case, the general duty of confidence owed by the employee to the employer is generally outweighed by the public interest in the wrongdoing being disclosed.

The law of breach of confidence has to a certain extent been overtaken by the incorporation of the European Convention on Human Rights into English law in October 2000. Article 8 of the Convention states that "Everyone has the right to respect for his private and family life, his home and his correspondence". Recent judicial statements suggest that the courts may be willing to prevent the publication of private information and photographs even where there is no specific relationship of confidence. Although the law is in a state of development there are a number of relevant factors that it appears the court is likely to take into account in assessing whether a person's privacy has been infringed. For example, the more intimate the information the more likely the court will prevent publication. Where there is a legitimate public interest in the information, this will be a factor in favour of publication. Furthermore, a person who has given interviews about his or her private life, thereby putting it into the public domain, will find it harder to prevent others from publishing similar information.