Breach Of Confidence

As defined in Mcnaey's - Breach of confidence is based upon the principle that a person who has obtained information in confidence should not take unfair advantage of it.

Governments use breach of confidence in order to protect certain information which they believe to be a secret. Individuals use it for the same reasons and also to protect privacy and this use of breech of confidence received strong support when the Human Rights Act was implemented in 2000.

Mr Justice Megarry said there are three main parts in a breach of confidence;

1. The information must have 'the necessary quality of confidence'

2. The information must have been imparted in circumstances imposing an obligation of confidence; and

3. there must be unauthorised use of that information to the detriment of the party communicating it.

The Quality of Confidence

So the law of breech of confidence is to safe guard information obtained in confidential circumstances. However information which is either factual or trivial does not count as being confidential such as a companies canteen menu or if information is already in the public domain.

The official Secret act

This is simply to protect state secrets such as military or intelligence. Publishing what is regarded as sensitive military images or or photographs is an criminal offence. A good case study to look at here is David Shayler. He is a British journalist and former MI5 security officer who became widely known after being prosecuted under the official secret act for passing on secrets documents to The Mail on Sunday in 1997. He suggested that MI5 were paranoid and that Labour party ministers such as Tony Blair had previously looked into it. At the trial Shayler claimed that the Official Secrets Act was incompatible with the Human Rights Act and that "it was not a crime to report a crime" although these arguments were ruled out by the court with the latter being ruled irrelevant. Shayler's defence attempted to argue that there were no other paths to pursue his concerns with the service. The judge ruled that while this was true it was irrelevant and therefore Shayler was found guilty under the Official Secret act and was sentenced to 6 months imprisonment.

Commercial Confidentiality - Normally between an employee and employer. For example a kebab shop worker couldn't tell the rival kebab shop over the road any financial information which may affect the company.

In a way lectures and students have a degree of confidentiality. If a student was to talk to a lecturer in private, the lecturer would not be allowed to repeat this information to other colleagues or students. However, if a lecturer was asked to provide a reference for a student, they would have almost a duty to say anything they feel may affect the outcome. If the reference was for a job that student was applying for, and the lecturer knew a good reason to why the student should not get the job, then like I said they have a duty to say so.

Privacy

An good case study in breech of privacy is the Max Mosley case. He won £60,000 in his privacy action against The news of the World who had incorrectly accused him of having a "sick Nazi Orgy" Although the allegations may have been true, it was not in the public interest and therefore a breech of privacy.

Mr Justice Eady said that Mosley had a "reasonable expectation of privacy" in relation to his sexual activities no matter how "unconventional".

He found no evidence of Nazi themes in the orgy and said Mosley's life had been "ruined".

"I found that there was no evidence that the gathering on March 28 2008 was intended to be an enactment of Nazi behaviour or adoption of any of its attitudes. Nor was it in fact. I see no genuine basis at all for the suggestion that the participants mocked the victims of the Holocaust," Eady said. "There was bondage, beating and domination which seem to be typical of S&M behaviour.

"But there was no public interest or other justification for the clandestine recording, for the publication of the resulting information and still photographs, or for the placing of the video extracts on the News of the World website – all of this on a massive scale." (gurdian.co.uk)