APPENDICES
¶3.17 Article 10 is dealt with in some detail at paragraph 2.10 onwards above. In short, Article 10
protects the right to freedom of expression, which encompasses the right to hold and impart opinions and ideas and the right to receive information and ideas. In general terms Article 10 protects the freedom of the press and the plurality of the media, although the degree of protection extended to particular types of expression will vary depending on the content. Reporting on matters of public interest will invariably attract a greater degree of protection than gossip about an individual's private life.125
¶3.18 Article 10(2) expressly acknowledges that interference with Article 10 rights may be justified
in order to protect the rights and the reputation of others. Article 10(2) permits a wide range of interests to be invoked as a justification for imposing restrictions on freedom of expression. Those most commonly invoked are the right to reputation or protection of privacy, often referred to as the tort of misuse of private information in domestic law.
¶3.19 It is the interplay between Article 8 and Article 10 rights that shapes the cause of action of misuse of private information.
¶Breach of confidence 3.20 Whilst misuse of private information will be the most relevant cause of action for individuals
seeking to protect their privacy, the principles that relate to breach of confidence remain relevant, as it may be easier for a claimant to establish on the particular facts that a breach of confidence is actionable, and the existence of a relationship of confidence may support a claim for misuse of private information, or may be determinative of the claim.126
¶3.21 The starting point is to determine whether there is a relationship or duty of confidence. This
may be by reason of express terms in a contract (for example an employment contract), or by reason of an implied term (for example an implied term that an employee will not use or disclose for the duration of his employment confidential information gained in the course of that employment). An obligation of confidence may also arise through the common law, and the courts have recognised that there are three elements to an action for breach of confidence. First, the information must have the quality of confidence. Secondly, the information must have been imparted in circumstances of confidence. Thirdly, there has been an unauthorised use of the information.127
¶3.22 In order to satisfy the first element, namely that the information has the quality of confidence,
1867the information must not be widely available in the public domain. The courts have developed a comprehensive set of principles through case law, which assist in defining when personal information may have a quality of confidence. Many of these factors overlap with the first stage of a misuse of private information claim; namely whether there is a reasonable expectation of privacy. These factors include whether the subject matter is of an intimate nature, whether the information is either believed or expressly stated to be confidential, the extent to which access to the information is controlled or protected and the form of the information. Generally material will not have the necessary quality of confidence if the
¶Appendix 4 | Legal Materials
information is trivial tittle-tattle.128 For example, in Mills v News Group Newspapers Ltd, on the particular facts of the case the court considered that the triviality of the claimant's address was a factor against granting an injunction.129 The courts have also sought to distinguish the levels of detail which may attract a duty of confidence, for example in Theakston v MGN Ltd, Ouseley J drew a distinction between that fact that a television presenter had visited a brothel, from the details of what had occurred there.130
¶3.23 In terms of the second element, it needs to be demonstrated that confidential information
comes to the knowledge of a person in circumstances where he is on notice, or has agreed, that the information is confidential.131 The element of unauthorised use of the information requires an analysis of the confidant's conscience and whether the person would, or should, be troubled by the disclosure of the information.132
¶3.24 Where a third party acquires information from a person who himself is subject to a duty
of confidence, the third party receiving the information may be restrained by an injunction from further disclosure of the information on the basis that the third party assumes a duty of confidence to the original confider. However, the extent of any relief will depend on the circumstances of the case. In order not to subvert an order of the court, a duty of confidence has been crafted that is binding on media organisations even where there has been no breach of confidence: see Venables v News Group Newspapers Ltd where the court imposed a duty of confidence on defendant news organisations and persons not party to the litigation with knowledge of the whereabouts and appearances of the killers of Jamie Bulger who, at the time of the killing, were 10 years of age.133
¶3.25 There are a number of possible defences to claims for breach of confidence, including
consent to disclosure, waiver of the duty of confidence, or where the party seeking to restrain disclosure is relying on an unlawful restricting provision. Further, where the information is false there is generally no duty of confidence, although careful enquiry will be necessary to establish whether the information merely has a number of minor inaccuracies or can be said to be completely false before this principle is applied.
¶Remedies 3.26 Most commonly a party will seek an injunction to prevent disclosure of the confidential
information. Often an injunction will be sought on an interim basis to prevent disclosure once the alleged breach of confidence comes to light. An interim injunction is unlikely to be granted where either the material will be published in the near future in any event, or where there is a lack of particularity as to the material that is confidential. A final injunction may be granted in relation to an actual or threatened breach of confidence. The courts more readily grant injunctions in respect of personal information than trade secrets, the latter being more readily assessed in monetary terms suitable for an award of damages.134
¶3.27 An injunction will bind the party to whom the injunction is addressed although third parties
1868may be liable for contempt if they act in a manner which is contrary to the terms of an interim injunction of which they have notice so as to frustrate the purpose of the judge in making