Cause of Action
Is it is a breach of confidence to publish information about sexual matters occurring between two
people in the absence of any express agreement between them that they keep such matters
Would James be in BOC if he passes on explicit photos from his relationship with JT to a
newspaper without an express agreement?
Would James be in BOC if he passes on information about JT's medical condition (mental
illness/depression etc) that he obtained by accident?
Limb One: The information must be of a confidential nature.
Is the info in the public Domain
Must not be in the public domain
Information that is in the public domain cannot be confidential (Coco)
To be in the public domain information must be known to a substantial amount of people
A limited part of the public are able to know (Spycatcher cited in SvA) Hotel staff and
passersby do not count as a substantial amount. AvB seen kissing in public still not in
Basic attribute of inaccessibility (SvA)
Is the information of a quality that warrants it being protected?
Trivial tittle tattle will not be protected (Coco)
Photos are able to be confidential (Hellewell)
Sexual conduct is able to be confidential (SvA)
Extra Marital affairs are able to be confidential (AvB)
Theakston Spectrum - sets up a spectrum of how private and how protected relationships
are going from marriage and long term de facto relationships at the top end of privacy
and confidentiality through, relationships, one night stands and at the end brothel
encounters which receive the least privacy and confidentiality. Anything higher than AvB
warrants some privacy.
Medical info is highly protected.
Grossly immoral, not relevant anymore as there is no universal moral code only
exceptions are thing like paedophilia
Limb Two: The information must be imparted in circumstances imposing an obligation of
Was there an express agreement of confidentiality (SvA)
It is the acceptance of the info on the basis that it will be kept secret that affects the
conscience of the recipient. (SvA) Would a reasonable person understand that the info was being told in confidence? An
obligation of confidence arises where a person knows or ought to know that the other
person reasonable expects his privacy to be protected. (AvB)(CA)
A third party when passed the information from the person in an obligation of confidence
should respect the obligation and understand its presence. (PvD)
Depends on where told if in public not as expected eg cafe where anyone could here not
confid, corner booth