#3601 - Breach Of Confidence Cases - Intellectual Property Law

BREACH OF CONFIDENCE - CASES

Confidential Information

Stephens v Avery [1988]

Information will not be ‘confidential’ if it is immoral

However this will be found very rarely.

On facts, fact that C was in a homosexual relationship was not immoral.

Fraser v Thames TV [1984]

C had idea for TV series concerning a female rock group. Was partly fictional and partly based on experiences of C. Idea was communicated to D (a scriptwriter), who then communicated it to D2 (a producer). D and D2’s TV company went on to produce TV show based on idea, but using different actresses to C. C sued for breach of confidence. Held:

Fact that idea was communicated orally is irrelevant to liability

i.e. information can be confidential regardless of its form.

To be confidential, idea must have some element of originality not already in public knowledge.

Must also be case that idea is clearly identifiable

i.e. as vague idea does not suffice

but also no need for idea to be fully developed

Facts

Information was confidential.

AG v Observer Ltd [1990]

Former senior MI5 agent published his memoirs in various countries outside UK. Numerous references to it were made in UK broadsheets (e.g. Sunday Times started to publish serialisation of book). Attorney-General sought injunctions against broadsheets for breach of confidence. Held:

Lord Keith

Even if information has been already published abroad, may still be secret if publishing it in UK would bring it to attention of more people in UK

Lord Goff

Information will not be confidential where:

1. it has entered the public domain

2. Information enters public domain where it is so generally accessible it can no longer be said to be confidential

3. it is trivial

   On facts, information had lost quality of confidence.

De Maudsley v Palumbo [1996]

C revealed his idea for a new nightclub to D during a dinner party. Information included that night club would operate all night, have top DJs from UK and worldwide, and would be decorated in a ‘warehouse’ style. D later built Ministry of Sound nightclub, but did not include C. C sued. Held:

Is possible for simple ideas to be protected.

However nonetheless idea cannot be protected if it is not sufficiently particular and defined

Facts

Information imparted by C was too general and lacking in originality.

i.e. with exception that idea that club would be open all night, none of idea were novel

Thus was not confidential.

BBC v Harper Collins [2010]

Person who played the Stig on Top Gear wanted to publish autobiography. BBC sued publishers alleging breach of confidence. D claimed there was no breach as information had already been made public through widespread press speculation as to identity of the Stig. Held:

Identity of Stig was so generally accessible that it could no longer be regarded as confidential.

This because press coverage went well beyond mere speculation as to Stig’s identity

Rather the statements as to Stig’s identity by press would be understood by public as statements of fact

Mars v Teknowledge [2009]

C produced vending machines with coin machines in them; D dismantled coin machine and copied technology from it. C brought action for breach of confidence. Held:

Once product is on market owner is entitled to dismantle it.

Thus information in coin machine was not confidential.

Springboard Doctrine

Terrapin v Builder Supply [1967]

D made prefabricated buildings to design specified by C. C communicated manufacturing details and technical specifications to D for this purpose. At end of contract, D began to make its sell its own prefabricated buildings incorporating many of C’s design features. C sued; D claimed there was no breach as sale of C’s buildings and existence of C’s brochures meant information was available to public. Held:

Person who obtains information in confidence cannot use it as a springboard for activities detrimental to person who gave information.

Is true that inspection of brochures and dismantling of C’s buildings might enable third party to copy design

However this is far more difficult than it would be without the technical specifications

Thus C used information to give him unfair head-start over members of public

Douglas v Hello! [2008]

Michael Douglas and Catherine Zeta-Jones and OK! magazine, had entered into agreement whereby OK! magazine would pay 1 million for exclusive rights to publish photos from their wedding. At wedding itself, guests were forced to surrender any equipment which could be used to take photos. However someone surreptitiously took photos which were then published by Hello! magazine. OK! also hurriedly published its official photos on same day. OK! sued Hello! for breach of confidence. Held:

Majority (speech of Lord Hoffmann)

D had committed breach of confidence in relation to C.

Any photos of the wedding as an event taken by anyone were commercially confidential information

and not merely the photos OK! was authorised to publish

Art 8 is completely irrelevant to OK!’s claim

i.e. HRA 1998 does not apply in respect of commercially sensitive information

Did OK have standing to sue?

Is necessary to keep one’s eye firmly on the money.

Therefore OK! have right to enforce obligation of confidence

OK! paid 1 million for benefit of obligation of confidence on those at wedding

Thus obligation of confidence was imposed for benefit of both Douglas’ and OK!

No reason why OK! should not get benefit of that obligation

Loss of confidentiality?

Photos are confidential even though Douglas’ did not intend to keep them secret

if information is worth so much that OK! was willing to pay to be only source of publication, is no reason why OK! cannot protect against D’s publication

Moreover photos are still confidential despite fact that D has put images of wedding in public domain

information protected here was any photos of wedding as a visual spectacle

and not information about what happened at wedding

Lord Walker (dissenting)

Fact that stringent security procedures were in place does not in itself make wedding ‘confidential’

Therefore obligation of confidence did not extend to any photos of wedding as an occasion

Law of confidence should not extend to protection of exclusivity in a spectacle

Lord Nicholls (dissenting)

D’s publication has caused a loss of secrecy.

This is because there is no new information contained in D’s photos not present in C’s photos.

Obligation of confidence did not extend to any photos of wedding as an occasion

Obligation of Confidence

Strangers

Valeo Vision [2005]

D, a company, bought information which was confidential. See notes.

Thomas v Pearce [2000]

Subjective approach: recipient of confidential information is bound by duty of confidence where he either:

1. Knew information was confidential

2. Was wilfully blind about confidential nature of info

Creation Records [1997]

Oasis were doing photoshoot for their upcoming album at hotel. Freelance photographer was allowed to view scene along with others staying at hotel, and took photos which were published in Sun. Record company sued. Held:

Despite fact that freelancer was able to view scene, was not permitted to photograph it

This clear from security arrangements around scene.

Thus scene of photograph was one of confidentiality.

Is obvious freelancer behaved surreptitiously to obtain photo (i.e. given security measures)

Thus freelancer must have known situation was one of confidence.

Breach

Murray v Yorkshire Fund Managers [1997]

Team of people, including C, put together a business plan with view to securing assets of a company. Information was disclosed to a potential financial backer of plan (D), who stated he was happy to finance project provided C had no part; other members of team consented to C being excluded and carried on without him. C claimed for breach. Held:

Confidential information came into being for purpose of facilitating project.

Thus when C was excluded from project, had no right to control how information was used.

Solution based on expectations of parties

i.e. was no binding agreement that all parties had to take part in project

thus any one of them could have withdrawn at any time

thus info obviously was an adjunct to project

Public Interest Defence

Lion Laboratories [1985]

C was company which manufactured a breathalyser. D, former employee of C, leaked documents to newspapers which allegedly showed the breathalyser was liable to commit serious errors which could lead to wrongful conviction. Held:

On facts, disclosure was in public interest

i.e. as it affects life and liberty of a large number of citizens

Employees

Hivac v Park Royal [1946]

Workers who manufactured hearing aids for company went to work for rival manufacturer in their spare time. Main employer sued. Held:

Manual worker can undertake work outside main job so long as as it does not undermine employer

Here, is inevitable that workers will disclose information to rival during course of work

thus is breach of duty of fidelity.

Balston v Headline Filters [1987]

D was director of a company which made filter tubes. Gave notice of termination of employment in March, which ended in July.

before July D was contacted by one of company’s customers, and told customer that he would be able to supply tubes in his own right after July

between March and July, D made preparations to manufacture tubes; bought equipment and employed some of employees of company.

C sued for breach of duty of fidelity. Held:

Facts

Was breach of duty of fidelity

buying equipment in preparation for starting company not breach

however canvassing of D’s customers and employment of D’s staff by C whilst still an...