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2 Breach of Confidence

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Queensland University of Technology

II Breach of Confidence An equitable duty that he or she who receives information in confidence shall not make unfair use of it: Seager v Copydex Nature & Jurisdiction (Exclusive Jurisdiction) • Can be enforced at common law o Information as a property right—conversion: Lamb v Evans - In equity, not necessary to establish proprietary right to claim (higher standards) o Provision of contract: Exchange Telegraph v Gregory - Although often inadequate due to privity of contract • Independent action in equity: Saltman Engineering v Campbell (1) Duty • By Nature of Relationship o Trustees, directors, agents o Professional context—solicitors in particular, bankers, doctors, accountants - Extends to all information acquired from and about their clients • By Elements in Cth v Fairfax; Coco v AN Clark Engineers (scooter invention stolen) o Confidential nature of information o Imparted in circumstances importing obligation of confidence (2) Breach • Unauthorised use of information • Threatened misuse of information: Argyle v Argyle • Damage not required: Smith Kline Elements (1) Confidentiality of Information • Must be: Douglas v Hello! o Available to one person or a group of people o Not generally available to others o The person must not intend that it become available to others • Public knowledge cannot be confidential: Saltman Engineering v Campbell o Diffusion in a particular industry is sufficient to make ‘public’: O’Brien v Komesaroff o Mere fact that a part of information is not sufficient to make ‘public’: Tule Manufacturing (general process & some machinery known but not specific formula) o Information loses its confidentiality (in equity) when made public: Titan Group v Steriline Manufacturing - Includes publishing on internet: EPP National Buying v Levy - NOT—Limited publication: G v Day (seeing attempted suicide v publication in newspaper) - NOT—Transitory publication which may be forgotten: Kwok v Thang (Verbal account of contents of tape) - NOT—Speculative gossip or innuendo: AFL v The Age (Rumoured names of drug tested players) • Form: need not be limited to words o Photographic: Creation Records v News Group Newspapers o Video: Kwok v Thang Andrew Trotter LWB240 Principles of Equity o Need not be tangible—can be an idea yet to be written down, etc. - Although must be sufficiently developed: De Maudsley v Palumbo (‘idea’ of a night club not TS) • Considerations o Nature and subject matter o Sufficiently developed o Originality - Though not necessary to meet standards of IP o Circumstances in which it came into existence (1) Commercial Confidences: Trade Secrets • Factors: Ansell Rubber v Allied Rubber per Gowans J (Design, construction and operation information about production machine = TS) o Extent to which information is known outside plaintiff’s business o Extent to which information know by employees within business o Measures taken to guard secrecy (Unauthorised persons not allowed into factory | express prohibition on employees communicating info) o Value of information to plaintiff and competitors: Franklin v Giddens (budwood for nectarines); Ecrosteel v Perfor o Effort and cost expended to develop information: Franklin v Giddens (budwood for nectarines); Koo v Hing o Ease or difficulty with which the information could be acquired or duplicated by others: Franklin v Giddens (budwood for nectarines) • The idea must be sufficiently developed: Talbot • Infor may still be secret if derived from public info: Coco; Saltman Engineering; Seager; Fractional Care Technology • Onus is on the applicant • Law does not prevent reverse-engineering • Must have sufficient originality—not bare idea, goal or possibility—rather some novel means of achieving it: De Maudsley v Palumbo (‘idea’ of a night club not TS) • Springboard doctrine—combination or analysis of public knowledge is nonetheless confidential since the defendants save time and money by having it figured out for them: Saltman v Campbell (holepunch drawings) o Confidentiality only lasts as long as it would take a member of the public to reproduce the information (so long as defendant continues to derive benefit): International Tools v Kollar * Though equity can still order relief for continuing benefit from misuse of springboard: Ocular Sciences v Aspect Visions • Encrypted information is not necessarily confidential, if received equitably: Mars UK v Teknowledge • “Know-how” not protected by equity: Amway Corp v Eurway International = Knowledge, skill and experience accumulated by way of relationship of confidant with confider (distinguished from TS using factors above) o Categories: Wright v Gasweld per Kirby P - Trivial information which is public—no protection - Information to be treated as confidential until termination of employment, at which point it becomes part of knowledge—temporary protection - Specific trade secrets that cannot be disclosed—total protection o Independent of contractual consideration of validity of restraint of trade clauses • Examples Andrew Trotter LWB240 Principles of Equity o Includes customer names (not just concepts & formulae): Lansing Linde v Kerr (harm to customers); Robb v Green (cannot deliberately memorise and use in next employment) * That the list is compiled by the employee does not stop it from being confidential if the customers are the result of the employer’s labour and trade: NP Generations v Feneley * Copy made for own purposes equally confidential: NP Generations * Although clients remembered independently of list may be solicited: Digital Pulse v Harris o Sales & Price information not confidential: Half Court Tennis v Seymour (2) Personal Confidences • Private information is not necessarily confidential o No doctrine of privacy—cf. UK o No privacy tort—cf. NZ • Nature of relationship between confider and confidant o Fiduciary Relationship: Warman v Dwyer o Marriage generally attracts confidentiality: Argyle v Argyle (dutchess & duke divorce, threat to release personal details) * Does not extend to information already publicly known: Lennon v News Group (Marriage secrets of John Lennon already in public domain) o May extend to unmarried sexual partners: Stephens v Avery * Shorter and less involved relationship is, less likely to be confidential: A v B plc (cheating footballer) • Nature of communication o Express basis of confidence may lead to being confidential: Stephens v Avery (friends discussing one’s lesbian relationship in express confidence) o Information relating to sexual conduct is not necessarily confidential: Theakson v MGN (celebrity going to brothel—nature of communications to prostitutes in brothel not confidential) o Private information sometimes held confidential: eg. Campbell v MGN (celebrity attending Narcotics Anonymous—policy?) • [Extent to which confidant is in public eye—more well known, less likely to be protected: A v B plc (cheating footballer)] • Extent of potential detriment o Disruption to minority social structure: Foster v Mountford and Rigby (book on aboriginal practices) o Reputation: G v Day (attempted suicide) o Danger of serious physical injury or death: Falconer v ABC (police informants); Venables v News Group Newspapers (released men who committed murder as children) • Duration o Until reaches public domain: Bunn v BBC (reading of judge in open court + circulation of 2,000 books = public domain) (3) Governmental Information • Elements required for relief: AG v Jonathan Cape o Publication is a breach of confidence; AND o Public interest requires restraint of information o No other facts contrary to and more compelling that those presented • Information will not be restrained if it will merely allow public to scrutinise government, no matter how serious: Australia v John Fairfax (book about various international relations, Soviet subs, US military bases, East Timor, etc) Andrew Trotter LWB240 Principles of Equity o However, may be kept confidential if it is in public interests for defence purposes, etc • Government has heavy onus: AG v Heinemann Publishers (Spycatcher) (Spycatcher case—book by Secret Service agent 50yrs after service; much of information in public domain) • Duration o Public domain, as with others: AG v Heinemann Publishers (Spycatcher) (2) Confidential Circumstances • May be created by— o Expre
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