There Was Also a Breach of Confidence Involved

Huey Green case. Copyright breach. There was also a breach of confidence involved.

Confidence

The information protected History BASIS “Has the quality of confidence” “Circumstances imparting an obligation” “Unauthorised use .. to the detriment of he party communicating it” Remedies – specific issues Privacy

Confidence

The information protected: Technological secrets, such as chemical formulae and mechanical techniques Commercial records such as customer lists and sales figures Marketing Professional and managerial procedures Political information Personal information.

There used to be a lot of law dealing with unpublished works through copyright.

Confidence

Two possible routes:

1) Unpublished ideas in recorded form (C18th) Abernethy v Hutchinson (1824) 1 H&T w 28

Someone who his lectures recorded. Didn’t want them recorded as he wanted people to pay to attend them.

2) Sir Thomas Moore in the Court of Chancery in the C1th – that “three thing are to be held in conscience: Fraud, Accidence and things of confidence”

Prince Albery v Strange (1849) 2 DeG &Sm 652 – Lord Cottenham LC

Strange had some etchings that he wanted to sell that the royal family wanted to keep private. Trust Breach of Contract Confidence Breach of copyright Often cited as the start of confidence.

Morison v Moat (1851) 9 Hare 241 –

Secrets concerning lenses •Turner VC stated:

•“In some cases, .. [courts] have referred to property, in others to contract, and in others, again, it has been treated as founded upon trust or confidence, ..”

Contract and confidence started to establish themselves as different from the other areas.

•Saltman v Campbell (1948) 65 RPC 203

Makeof leather punches. Someone used the designs. Breach of confidence, because agreement confidential in nature.

To protect what was happening there, there had to be a term implied in the contract.

•Seager v Copydex No1 [1967] 2 All ER 415 Lord Denning MR “…shall not take unfair advantage of it”

Idea of unfair advantage discussed. TV contest. People proposed inventions.If the ideas were good enough, the company will manufacture them.

Copydex company had heard a proposal put forward by Seager when he was trying to sell Carpet Grip idea. Initially did not wish to take on idea, but did so after it took off.

Denning said that they should not take advantage of the presentation done by them. They had done it in confidence.

3 grounds of case that was brought. 1. Malicious falsehood. Could prove that. 2. Contractual relations. Contracthad been breached. Wasn’t breached. 3. Breach of Confidence. Was successful.

Douglas v Hello No1 [2001] EMLR 199 - Keene LJ

In the first case, LJ keene talked about the breach of confidence in the context of privacy. Breach of confidence is a developing area of the law, the boundaries of which...... may change to reflect changes in society. The traditional test is that laid out by Megarry J in Coco v Clark [1969] RPC 41: •the information must have the necessary quality of confidence about it •the information must have been imparted in circumstances importing an obligation of confidence •there must be an unauthorised use of that information to the detriment of the party communicating it

Megarry J didn’t want it to be a rigid test. He merely wanted them to serve as guidelines. Final outcome not intended.

Moped motors. Some people left company and started making their own mopeds.

Megarry J came out to deal with this situation

O’Connor J in PA Thomas v Mould [1968] QB 913

Taxation arrangements. Someone took information from employer and gave it to other people. Intorcurory injunction given. Knowhow and skill.

The information concerned has the necessary quality of confidence.

An idea may be protected by confidence law unlike copyright law. Fraser v Thames Telivision [1983] 2 ALL ER 101. Failed on copyright grounds on issue. Another part of case dealt with breach of confidence.

Ideas which fail the level of copyright subsistence can be protected by confidence? What level is allowed though? Might undermine copyright protections.

De Maudsley v Palumbo [1996] FSR 447

Ideas concerned ways in which night club worked. Tried using law of confidence to protect ideas.

•Knox J distinguished Fraser

•An idea was not protectable. • Five elements were looked at to assess this:

•that the club would operate all night, legally

•be big, with novel décor in a high tech industrial warehouse style

•incorporate separate areas for dancing, resting and socialising, with a VIP lounge

•the dance area would have excellent sound, light and atmosphere which did not penetrate into the surrounding elements

•top disc jockeys worldwide would appear

5 parts to this idea, and they all failed. Most of them deemed to be too vague. One or two of them were basically deemed to be lacking in novelty. Vagueness and novelty key things, as is being too general (Generality.)

Shows that you can’t bring a failure in copyright law through confidence all the time. it is not essential for confidential information to be in writing or other permanent form

•it is essential for the information to have at least some attractiveness to an end user and be capable of being realised as an actuality

•a trade or industry practice of treating an idea as confidential information was a significant part of the result in Fraser.

When information is in the public domain.

EPI v Symphony Plastic [2005] FSR 502

Compounds for biodegradable plastic bags. ALTHOUGH INFORMATION is potentially confidential here, defendant must be found in action brought against them, and they must show that information is in the public domain.

Lord Denning MR in Dunford and Elliot v Johnson and Firth Brown [1978] FSR 143 (share reports) Leaking of information about share reports. The confidence part does not succeed as areas involved already in public domain. Denning: In certain circumstances, the fact that certain information is in the public domain may drive a hole in the blanket of confidence.

•Saltman v Campbell (1948) 65 RPC 203

Looking at source of breach of confidence. Implied term in contract. Said that you can imply terms directly or indirectly.

The other aspect to look at is the idea of implied contract. Also referring to equitable principles. Equity can also play a function in confidential arrangements.

•Cf to Schering Chemicals Ltd v Falkman [1982] QB 1

Individual leaked to the press information on a pregnancy test. The defendant’s here had been keeping it. Falkman here was under a fiduciary duty not to release it. Weren’t interested in the public interest aspect. RE-LOOK THIS.

What other things help to identify a breach of confidence?

•Inline Logistics v UCI Logistics [2002] RPC 32 - Mummery LJ

Issue of infringements in designs of production of buildings.

It has to be specific what it is you’re seeking to protect.

Courts can infer confidence by looking at what is going on.

Ocular Sciences Ltd v Aspect Vision Care [1997] RPC 289

Concerned manufacture of contact lenses. Question of how far you can protect things with confidence. If someone puts a confidence clause in a contract, a university lecturer might not be able to work in another institution for say 10 years. Will undermine..... of market. Skill can be an area where you can identify breach of confidence, but there are limits to how far you can protect them.

Springboard Doctrine.

Terrapin v Builders Supply Co. [1967] RPC 375 Building techniques had been taken. Customer lists. Could that be protected information? Defendants had gained springboard into market. Interlocutory injunction imposed. Hindered competition in an unfair manner.

The springboard does not last forever. A number of factors may be relevant:

•how truly did the information become public?

•How likely is it that the defendant would have discovered the information without any impropriety, if not received in confidence?

•Did the plaintiff believe that he himself would be injured by the release of the information?

Confidence may be implied by the court in the general circumstance of the case.

What about the ‘form’ of the confidential information? final physical products may contain confidential information Franklin v Giddens [1978] Qd R 72

Held to be confidential information in an orchard. Improved strain of nectarines. Farmer had been developing this. Cross pollination had been occurring. Defendant had been cutting trees. Information taken and reused by other farmer. Little bit of uncertainty over whether orchard could be considered confidential, but it was.

Campbell v Frisbee [2002] EWCA Civ 1374 Naomi Campbell. Relationship with Fienes. With B. Leaked information about relationship with B, because he had hit her. Campbell brought a case against manager. Manager by that time had left employment o Campbell.

Couldn’t bring a case with contract. Court allowed hearing in confidence to take place, but felt that it shouldn’t be allowed to succeed, because of public interest with regard to information concerned. Not dealing with a contract as such. Not dealing with skill and knowledge or an idea. Dealing with someone’s private life. This could be potentially protected through confidence alone and not through privacy. Action failed on grounds on public interest though. Who decides if information is confidential? Thomas Marshall (exports) v Guinle [1979] 1 Ch 227: Case follows on from Coco v Clark, and builds up on McGerry J’s test.

•“First, I think the information must be information the release of which the owner believes would be injurious to him or of advantage to his rivals or others.

•Second, I think the owner must believe that the information is confidential or secret, that is, that is not already in the public domain .. [some rivals may have it] .. but as long as the owner believes it to be confidential …

•Third, I think the owner’s belief under the previous two heads must be reasonable

•Fourth, I think that the information must be judged in the light of the usage and practices of the particular industry or trade concerned”

What is not protected? What is not confidential? •trivial tittle tattle –Mills v NGN [2001] E.M.L.R. 41

Heather Mills received threats. Worried that the mirror would publish details of her address and endanger her life. Brought an action against the court to prevent publication of information, an interlocutory injunction because it felt that this was just trivial title tattle.

•scandalous or immoral material (in the same way as under copyright law) – Stephens v Avery [1988] FSR 510

Good friends, but then they won’t anymore because one of them had provided information the press about a lesbian relationship between the plaintiff and another woman. Husband of woman who had lesbian affair had murdered his wife.

Action for breach of confidence successful here. Certain practices protectable. However, if it was not the case, if it was scandalous alone, murder, and not about their private sexual life in general, it won’t be protected by confidence.

•Information provided with consent C v C [1946] 1 All ER 562 Torrington Manufacturing Co. v Smith [1966] RPC 285, cf. to Regina Glass Fibre v Schuller [1972] RPC 229 Paitient doctor relationship Idea that paitients info shld be confidential. Veneral disease. Failed. INFORMATION had been provided by consent of paitient.

Regina Glass Fibre v Schuller [1972] RPC 229 License agreement for production of goods ending. Court said that when a contract ends, confidential information under that contract will continue remaining confidential. Right to use confidential information after termination of contract.

Gartside v Outram (1856) 26 LJ Ch 113 Person working for company. Evidence brought from company. He disclosed it. Fraud. Any action would be confidential.

“there can be no confidence which can be relied on to restrain a disclosure of iniquity”

Iniquity can be broad – Woodward v Hutchins [1977] 2 All ER 751

Case involving musicians. Musicians trying to present themselves in a positive light. Manger say they had behaved in a good way in order to attract more sponsorship. What came to lght was some details regarding thwir private lives, e.g. the taking drugs. They wanted to retrain information coming out of public domain. Trying to present themselves as innocent people when they won’t. Action won’t succeed.

Confidence •Initial Services Ltd v Putterill [1967] 3 All ER 145 Lord Denning MR

Intitial service behaving in an anti-competitive mnner. Someone went on to be a whistle blower for the company. Permissible. Won’t fail. Just like the gatside alteium case. More on anti-competitive conduct.

Lion Laboratories v Evans [1985] QB 526

Case where beathalisers of company weren’t realible in determining alohol content, info leaked ot the press. In this situation, confidentiality would be protected.

Francome v Mirror Group [1984] 2 All ER 408 Allegations against jockey of race fixing. Tapping of phone etc. Trial pending. Normally, this would be a situation relating to confidence. However, public interest could possibly be brought in. However, because there was a trial ongoing, if information was release,d thre could be an unfairness of the trial resulting SO, information could be restricted in thi sense.

Lord Goff in AG v Guardian Newspapers No 2 [1990] 1 AC 109

Spy catcher case. Peter wright’s book on security services.

His action reeks of turpitude. Moral repugnance. Terpitude can be a factor. Can limit someone’s claim to confideitnal information.

AG v Jonathan Cape [1976] QB 752

Govt minister had produced a book, Crossman diaries that introduced public to works of govt. Cabinet responsibility. Was supposed to keep secret and not divulge inner workings of Parliament. However, he published book just about 10 years after he left govt.

Qn was whether he could publish diaries or not. One view was that he could publicise it as thre wouldn’t be any negative impact. Everything will go on as it was before. Cabinet responsibility could last for a period of 10 years.

An action of breach of confidence may fail if there was any negativity following from it? However, this conflicts with the public interest argument.

Obligation of Confidence Decided from the viewpoint of the court, objectively: •“If the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence” Megarry J in Coco v Clark.

Jirna v Mr Do-nut (1973) 40 DLR (3d) 303.

Canadian case. Often mentioned in confidence elsewhere.

What happened was it had cme to light of employee that therw was some dubious behaviour relating to donuts in Canada. 20% sellback. Large sums of money had to go back from shops back to Mr Donut, potentially when it was done in an anti competitive way.

Was employter under a fiduciary relationship? That’s one way you can imply an obligation of confidence.

Relates to financial matters and other issues.

Another issue related to employment situation.

Employers and Employees:

Faccenda Chicken v Fowler [1986] 1 All ER 617.

Talks about trade secrets. Some employees left company and set up competing company.

In the end, because of the way argument was put forward...

Following Faccenda Chicken v Fowler [1986] 1 All ER 617, a number of factors may be looked at: •the nature of the employment (i.e. as to whether confidential information was regularly handled) •the nature of the information at issue •the degree to which the employer pressed its secrecy on the employees •the ease with which it can be isolated from unprotected information •the extent to which the information is available in the public domain •the likely damage from use or disclosure

All these things can help establish whether someone is under an obligation of confidence or not. Comes up in the context of employers and employees.

Sometimes, the court will imply certain things.

Hivac v Park Royal [1946] 1 All ER 350

Involved people making hearing aids. Employers working for main co on certain days, but working for competitors on Sundays. During war, shortage of labour. Breach of confidence here. Implied breach. Said here that there would be an obligation of confidence to your employer. However, employees allowed to keep jobs because of circumstances. Employees though, do owe a duty of confidence to their employer.

Employees shouldn’t memorise lists of customers with a view to set up a competing undertaking – Robb v Green [1985] 2 QB 315

Things implied in terms of Employer/ Employee r/ns. When you do move from a job to another job, things will be present in your mind. Idea that you shouldn’t use this sort of information is not..

•. In AG v Guardian Newspapers No 2 [1990] 1 AC 109, Lord Goff stated:

•“A duty of confidence arises …in circumstances where he has notice, or is held to have agreed, that the information is confidential…”

Case different from other cases where confidence implied.

Concerns information on innocence. Is innocence going to help you escape liability?

Typically distinctions are drawn between secrets specific to a job and secrets which are more incidental features or expedients.

•This can place a heavy burden of proof on previous employers

Indirect recipients can also be held liable if “deliberate or reckless”– British Industrial Plastics v Ferguson [1940] 1 All ER 479.

Employee left plantiff co, joined defendant co. Brought certain info with him. The info was under confidential clauses in his contract. Should the defendant company be held liable then? They escaped liability, even though the court said they had behaved in a muddle headed way. If they had stuck certain things together, they would have realised what was going on.

If co had behaved deliberately or recklessly, they can be held liable.

•If innocent? Wheatley v Bell [1984] FSR 16 SC(NSW).

In relation to the point of law, it has been argued that the purchaser of some information... Was alleged that they should be treated as innocent receipients. They argued that they were bona fide purchasers for value without notice. There was a reference to equity. If this was the case, you would therefore not be bound by a duty of confidence. Court held that this wasn’t so. That the doctrine would not apply outside of the context for sales of land.

In relation to land, would not apply to breaches of confidence.

3. Unauthorised Use to the communicator’s detriment

Some basic elements are developed in CMI-Centers v Phytopharm [1999] FSR 235 per Laddie J: Discharge of pharmaceutical medicines. •“The first is to produce direct evidence of use •Secondly, it may be possible to prove use indirectly by demonstrating the existence of some significant fingerprint … •Thirdly, it may be possible to persuade the court that the defendant could not have got to the position he has with the speed he has had he simply started from legitimate sources and worked everything out for himself…”

In Ocular sciences, there was mention made... It was said that it would not be detrimental in this case if any of the information went to the public.

On detriment:

•.. the contribution had to be sufficiently extensive and important – Ocular Sciences v Aspect Vision Care [1997] RPC 289.

Whether detriment is influenced in any way by the state of mind of the defendant.

Whether something would be considered detrimental if the person who commied rbeach didn’t know that it was detrimental.

The state of mind of the defendant appears not to be relevant.

• Nichrotherm v Percy [1956] RPC 272, Infra-red lighting used in shds containing chickens. Tak about using technology for sheds for pigs. Thee was breach of confidence. However, court felt that there ws no moral turpitude by defendant. He hdn;t intended to cause any harm. No detriment. and

National Broach v Churchill Gear [1965] RPC 61.

Hehas a contracrt in realtion to production of machines. Hasd access to information that he should have to. Defendant trying to argue that he hadn’t cause breach of oconfidence because platinfi following license of producrion of machines. Alot of theowing around on both sides. All other issues about license agreement, state of mind etc, all irrelevant.

Seager v Copydex No 1 [1967] 2 All ER 415

Mention made about unconscious copying. Subconcious copying. Carpet Grips. Copydex said that they hadn’t deliveratly copied. Held that even if there was subconscious copying, it could still be a rbeach of confidence.

Financial gain may come into play, in the sense that someone may argue that someone is using the breach of confidence action to gain a financial advantage. E.g., you popularity might be fading, you may bring about a breach of confidence to bring youback in the public limelight.

The requirement prevents confidence being used merely to make money –

Lennon v News Group [1978] FSR 573, cf. Douglas v Hello (judgments No1, No3 & No6) and in particular OBG v Allen [2007] UKHL 21

John Lennon had been published. Information going out about hisprivate life. Action brought about on breach of confidenc,e but it was held that this...

. Douglas v Hello (judgments No1, No3 & No6) and in particular OBG v Allen [2007] UKHL 21

Situation where there was a license agreement for photographers to phogoraph Douglas’s wedding. All about financial benefits, but it didn’t featue in judements. The fact that a lot of money involved will not mean that there can’t be an action for the breach of confidence. If you bring about an action to make money though, then that might be a completely different story. Remedies – particulars for confidence

•Interim Injunctions oiuy can pass thrugh all thet rsts in cocoland clark, but you may not get anything. Moral scrubble.

Distributed information. Acting as employees in sharing. Were they doing so simply to make money. Morally repugnant in sharing. LJ Shaw said that some information could have been imparted to company... WHAT?

Schering v Falkman [1982] QB 1

AG v Guardian Newspapers No 1 [1987] 3 All ER 316

Spycatcher case. Disgraceful actions. Interim injunction etc...

Max Mosley v NGN (No 1) [2008] EWHC 687 (QB) “… would merely be a futile gesture.”

Morality did not come up in this amazingly. Was however, said to be a futile gesture.

Coco v Clark [1969] RPC 41

•Megarry J in Coco v Clark [1969] RPC 41 gave a list of factors that could be looked at which would militate against granting an injunction: •if a defendant was copying either subconsciously or innocently •the gratuitous manner of the plaintiff’s communication •that the information was not being used as such but being used as an alternative in collaboration with another •the extent of the defendants own contribution to the final product [note, now, also Ocular Science ] •whether the information was economic or personal •the relative mundane or subsidiary character of what was taken •the fact that the information had become public •the patentable nature of the idea “Super Injunctions” RJW & SJW v The Guardian newspaper & Person or Persons Unknown) [2010] EWHC 119 (QB) Terry v Persons Unknown [2010] EWHC 119 (QB) * Donald v Ntuli [2011] 1 WLR 294 “…continued anonymity of the defendant was justified by a significant risk that lifting his or her anonymity might have serious consequences for his or her private life which consequences might not be remediable…”

An MP asked a question using is parliamentary privilege on

Terry v Persons Unknown [2010] EWHC 119 (QB)

Said that there had to specificity on what was pulshed bout john terry and the affair he was having.