Breach Of Confidentiality, Defences And Remedies

Front 1

What are the 3 factors that constitute a breach of an obligation of confidentiality?

Back 1

1) the confident used/ disclosed the information
2) the information was obtained from the confider directly or indirectly
3) the use or disclosure went beyond the purpose for which the information was confided.

Front 2

Which case states that an OBJECTIVE standard is used to determine whether the confident knew or ought reasonably to have known that the information was confidential?

Back 2

Source Informatics [2000]

Front 3

Which case states that the information used by the defendant must have been derived from the confider's information.

Back 3

CMI Centres v Phytopharm [1999]

Front 4

Is the defendant's state of mind relevant for breach of confidence?

Back 4

No

Front 5

Which case states that in relation to private information there is no need to show that the claimant suffered any detriment beyond invasion of private life?

Back 5

McKennitt v Ash [2008]

Front 6

What did McKennitt v Ash say about the 'nature of the information?'

Back 6

The nature of the information is the primary focus when determining a breach, as it is the recipient's perception of the confidential nature of the information that imposes an obligation on him.

Front 7

What is the 2-stage approach set out in Ash v McKennitt [2006]?

Back 7

The court should adopt a 2 stage approach when considering article 8 and article 10 rights- neither has inherent precedent.
1) It must be established whether there was a 'reasonable expectation of privacy' so as to invoke article 8.
2) It would be necessary to consider whether there were any 'limiting factors' i.e. whether the information was in the public domain; whether it was trivial and whether there was public interest in the disclosure. -PROPORTIONALITY of an injunction.

Front 8

Which case states that if confidential information is the product of a lot of work then a defendant may infringe if they use just a small part of the information?

Back 8

Amber Size v Menzel [1913]

Front 9

What are the 2 main defences to breach of confidence?

Back 9

Consent/Authorisation and Public Interest

Front 10

Which case established the defence of public interest?

Back 10

Gartside v Outram [1856]

Front 11

What are the 5 factors to be taken into account when assessing the public interest defence?

Back 11

1) nature of the information
2) beliefs of the confident
3) consequences of non-disclosure
4) the type of obligation
5) the party to whom the information was disclosed

Front 12

Which case states that the public interests defence does not apply to information that is merely 'interesting to the public?'

Back 12

Lion Laboratories v Evans [1985]

Front 13

Which case states that disclosure by a priest or doctor could rarely be justified in the public interest?

Back 13

X Health Authority v Y [1988]

Front 14

Which case states that if disclosure relates to a misdeed of a serious nature and importance to the country then it is likely to be justified 'in the public interest?'

Back 14

Beloff v Presdram [1973]

Front 15

Which case states that disclosure is more likely to be justified if made to a 'responsible body' rather than something like a newspaper?

Back 15

Imutran v Caged Campaigns [2002]

Front 16

In which case was it stated that disclosure would have been more acceptable if it had been to the Jockey Club rather than a newspaper?

Back 16

Francome v Mirror News Group

Front 17

Which case states that remuneration for information is possible, but it may suggest that the defendant confused their own interests with those of the public?

Back 17

Schering Chemicals v Falkman [1982]

Front 18

What is the primary remedy in a breach of confidence action?

Back 18

Interim injunction to restrain use or disclosure of the information

Front 19

Which case states that it is important that an injunction be granted in specific terms?

Back 19

Potters Ballotini v Weston Baker [1977]

Front 20

What other types of remedies are available?

Back 20

damages, account of profits and constructive trust.

Front 21

How are damages assessed and which case states this?

Back 21

tortiously, reflecting the loss suffered by the claimant.
Seager v Copydex (No 2) [1967]

Front 22

In relation to what type of obligation is an account of profits usually awarded?

Back 22

an equitable relationship

Front 23

Which case states that a duty of confidence may survive the death of the individual to whom the obligation is owed?

Back 23

Buck v Information Commissioner (2007)

Front 24

Which case states that a duty of confidence may decline in importance as time passes after death?

Back 24

Editions Plan v France [2006]

Front 25

Which case stated that release of information to right a public wrong could be valid?

Back 25

Woodward v Hutchins [1977]

Front 26

How is the Coco v Clark test applied in relation to private information?

Back 26

The first element (necessary quality of confidence) is fulfilled int he claimant had a 'reasonable expectation of privacy' following Campell.
The second element)imparted in confidence) does not have to be established. The obligation can be imposed merely because there is a reasonable expectation of privacy.
For the third element, a balancing act must be achieved between article 8 and 10 ECHR

Front 27

What is the current status of the public interests defence in relation to commercial cases?

Back 27

It has largely been replaced by the application of article 10 ECHR- freedom of expression