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Breach of Confidence - When Voluntary Information Becomes Confidential?

2013-02-01

Background

In Chor Ki Kwong David v Lorea Solabarrieta Cheung HCA 1870/2012, 6 February 2013, the court was invited to rule on a case in which the plaintiff sues the defendant for breach of confidence.

At the material time, the defendant worked as a television presenter and journalist.She was then studying for the degree of Master in Journalism, and she needed to produce a video footage as her graduation project.The defendant contacted the plaintiff and his wife (“Mr. Chor” and “Mrs. Chor”, together the “Chor Couple”), who agreed to help and be interviewed on camera.

The interviews were filmed around the Chor Couple’s residence as well as during the Chor Couple’s social occasions, during which the defendant obtained details of the Chor Couple’s family life, family relationship, the Chor’s family finance and lifestyle.The defendant also obtained some of the plaintiff’s family photographs (“Information”).

In May 2010, the defendant incorporated the Information into a video clip (“Video Clip”), which was screened at the university as the defendant’s graduation project.At about the same time, part of the Information was incorporated into an article (“Article”).The Video Clip and Article were soon uploaded onto the Internet by a production company established by the defendant and were made available to the public.

The Chor Couple were not pleased when they learnt that the Video Clip and the Article were published on the Internet.Having failed to convince the defendant to remove those contents from the Internet, Mr. Chor commenced the present action against the defendant for breach of confidence.Mr. Chor also applied for an interlocutory injunction against the defendant.

Breach of Confidence?

Basic Principles

In considering whether an interlocutory injunction should be granted, the court had to examine the merits of the plaintiff’s case, in particular, whether the Information can be considered as confidential.

The elements of a claim of breach of confidence were set out in Coco v A H Clark (Engineers) [1969] RPC 41, which requires that:-

1. the information in respect of which relief is sought was confidential in nature;

2. the information was imparted by the plaintiff to the defendant in circumstances importing an obligation of confidence; and

3. the use and publication of the information by the defendant was unauthorized.

Family and Personal Information Confidential?

The plaintiff submitted that family and personal matters are capable of being confidential in nature (Michael Barrymore v News Group Newspapers Ltd [1997] FSR 600).Moreover, the Video Clip and the Article both relate to matters personal and private to the Chor Couple, which would not be generally known to the public without being revealed.

In addition, it was the plaintiff’s case that the defendant had repeatedly assured the Chor Couple that the Information would only be used for her graduation project, and it was only upon such assurance that the Chor Couple agreed to be interviewed and filmed.

Whilst accepting the defendant’s submission that the Information was given by the Chor Couple voluntarily, the court commented that this does not necessarily take away the confidential nature of the Information.The court further stated that whether the Information is confidential would “depend on whether the Information was provided in circumstances where one would expect confidentiality to be respected, and where the Information was only supposed to be used for specific purposes as understood at the time when the Information was provided”.Therefore, in the event that the defendant did make the assurance as alleged, such might contribute to the conclusion that the Information should be considered confidential.

The plaintiff’s case was also supported by the email correspondence between the defendant and the Chor Couple, in which the defendant asked the plaintiff for permission to incorporate a picture of the Chor Couple in the Article.In his reply email Mr. Chor did not address the defendant’s request, but just asked her not to quote him or Mrs. Chor for their comments made during the interview regarding some golf courses.Despite Mr. Chor’s request, the Article not only incorporated the picture of the Chor Couple, but also quoted them for their comments on the golf courses.In the circumstances the plaintiff submitted that the publication of the Article and the Video Clip on the Internet was clearly outside the authorization given to the defendant.

Court’s Ruling

The court having viewed all the circumstances discussed above, found that it is “seriously arguable” that the Information obtained are confidential in nature; that there exists a duty of confidence between the parties; and that the consent to the publication of the Information was limited to the purpose of the graduation project of the defendant.

Having been satisfied with all other elements for an injunction order under American Cyanamid Co v Ethicon Ltd [1975] AC 396, the court granted an interlocutory injunction against the defendant.

Holistic Approach Applied by Court

One has to be reminded that the above is only the court’s ruling on an application for interlocutory injunction.The effect of this interlocutory injunction would only last until the end of the full trial when the court will deal with the case in full.

Be that as it may, it could still be seen from this case that the court is applying a holistic approach, and will take into account all circumstantial evidence, in determining whether the information concerned is confidential and whether that piece of information is being used for a specific purpose for which it has been disclosed.That said, information, which was voluntarily passed during a trivial gossip, could become a secret actionable against those who has further disseminated the information without authority!


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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
Published by ONC Lawyers © 2013


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