A duty of confidence arises when confidential information comes to the knowledge of a person in circumstances in which it would be unfair if it were disclosed to others.
The Human Rights Act 1998 has developed the law on breach of confidence so that it now applies to private bodies as well as public ones.
Typically, to rely on a claim of breach of confidence, reference must be made to the elements established in common law.
In Coco v A N Clark (Engineers) Ltd a breach of confidence claim was made regarding technical information which held significant commercial value.
[4] A number of considerations have been regarded by courts as relevant to whether information is public knowledge, and in determining confidentiality accessibility is seen as an important factor.
[8] A woman had been sexually assaulted, with the broadcaster obtaining knowledge of this information from the remarks of the trial judge.
In Campbell v MGM Ltd, the House of Lords refuted the previous requisite for a pre-existing arrangement of trust and confidence, instead holding an obligation arises whenever a person receives information they know or ought reasonably to have known is confidential.
The Court in Lenah applied these English developments, finding confidence in this case was not impacted merely because the woman at hand had informed friends and family she had been sexually assaulted.
[13][14] There are four ways of receiving confidential information: The information was used to detriment of its owner The modern English law of confidence stems from the judgment of the Lord Chancellor, Lord Cottenham,[15] in which he restrained the defendant from publishing a catalogue of private etchings made by Queen Victoria and Prince Albert (see Prince Albert v Strange).
Although the court divided 3–2 as to the result of the appeal and adopted slightly different formulations of the applicable principles, there was broad agreement that, in confidentiality cases involving issues of privacy, the focus shifted from the nature of the relationship between claimant and defendant to (a) an examination of the nature of the information itself and (b) a balancing exercise between the claimant's rights under Article 8 and the defendant's competing rights (for example, under Article 10, to free speech).