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Confidence and Privacy: A Re-Examination

Published online by Cambridge University Press:  16 January 2009

Helen Fenwick  and
Gavin Phillipson
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Extract

The flexibility of the doctrine of confidence and its adaptability to illsorted and disparate situations has often attracted academic attention, but although it continues to develop, its ability to protect privacy has not perhaps been sufficiently emphasised in recent discussions of both privacy and confidence,despite the debate generated by the (recently abandoned) proposals for a new tort of invasion of privacy. The notion that developments in the doctrine of confidence could properly render it apt to protect privacy came under attack by Wilson in 1990 on the ground that legal obligations to maintain confidence of intolerably uncertain scope might arise as a result of the normal incidents of social life and friendship.

Type
Shorter Articles
Information
The Cambridge Law Journal , Volume 55 , Issue 3 , November 1996 , pp. 447 - 455
Copyright
Copyright © Cambridge Law Journal and Contributors 1996

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References

1 See the Calculi Committee on Privacy and Related Matters (1990 Cm. 1102)Google Scholar, para. 32 and Wacks Privacy and Press FreedomGoogle Scholar(London 1995) at p. 56; compare the earlier view of the Younger Committee (Report of the Committee on Privacy 1972 Cmnd. 5012), p. 26.Google Scholar

2 Calcutt Committee, n. 1 above; Lord Chancellor's Green Paper, 30 July 1993 CHAN J060915NJ.7/93. However, the White Paper Privacy and Media Intrusion: the Government's Response (Cm. 2918, July 1995) found against creation of a statutory tort.

3 "Confidence, Privacy and Press Freedom" (1990) 53 M.L.R. 43.Google Scholar

4 The term "privacy" is used in this article in the sense argued for by Wacks (The Protection of Privacy London 1989, pp. 1021):Google Scholar the interest in controlling the disclosure of personal information about oneself. For a contrary view, see Feldman "Secrecy, Dignity or Autonomy? Views of Privacy as a Civil Liberty"47 (2) C.L.P pp. 41 71, esp. pp. 53–59

5 [1990] 1 A.C. 109.

6 [1969] R.P.C. 41,47.

7 [1990] 1 A.C. 109, 260.

8 Note the similar findings in the privacy context on this point in Broadcasting Complaints Commission ex p Granada TV Limited The Times 31 May 1993 (affirmed The Times 16 December 1994 CA).

9 Transcript, Association of Official Shorthandwriters Ltd. 8 November 1993. See below at p. 449.

10 [1988] Ch. 449.

11 Ibid., at pp. 4–5.

12 10 December 1993, Transcript from LEXIS.

13 [1995] 1 W.L.R. 804, 807.

14 As earlier indicated by Pollard v. Photographic Company [1888] Ch. 345.

15 [1988] Ch. 449, 482.

16 Ibid.

17 As in Duchess of Argyll v.Duke of Argyll [1967] 1 Ch. 302.

18 20 May 1994 CA, Transcript from LEXIS.

19 "[Plaintiffs Counsel] submits that in the context [the plaintiff] disclosed to [the defendant] a confidential idea which he believed could be commercially successful, particularly with his indorsement. In my judgment, that is an arguable inference … It all depends precisely on the language used, and the circumstances in which the conversation took place … [Defendant's Counsel] points out that … if the plaintiff simply blurted out or casually referred to the No. 1 game … then the defendant could not be taken as understanding that he was being given that information in confidence. That may be so, but in my judgment it is not possible to say … precisely what inference should be drawn by the reasonable man who was the bystander and observer of the conversation", per Stuart Smith L.J., at pp. 7–8 (emphasis added). The hearing was an appeal upon an application to strike out, so the court did not have to decide whether an obligation of confidence was in fact imposed.

20 [1990] 1 A.C. 109,281.

21 Fairnie suggests that it will not always be essential to show that this element is present.

22 [1984] 1 W.L.R. 892.

23 Cf. the remarks obiter in Malone v. Commissioner of Police of the Metropolis [1979] Ch. 344, 376 to the effect that those who spoke of confidential matters in situations in which it was foreseeable that they could be overheard (e.g. on the telephone) could not claim that any eavesdroppers were bound by a duty of confidentiality. However, in Malone v. U.K. [1984] 7 E.H.R.R. 14 the European Court of Human Rights reaffirmed (at p. 38) the place of telephone conversations within Article 8 and therefore must be taken to have rejected the notion that citizens assume a lack of confidentiality in communication by telephone.

24 10 December 1993, transcript from LEXIS, at p. 13, per Mr. Mann Q.C. (sitting as a Deputy Judge): "[the photographer] was not an invitee and assuming that he saw the signs [forbidding photography]… (I am not convinced that it would be fatal to Shelley's case if he did not…) it is impossible … not to conclude that what he saw and understood from his location … fully and sufficiently fixed him with knowledge [that the plaintiff wished to keep the appearance of'the Creature' and its costume secret] according to any of the relevant standards . . .". The Australian case of Franklin v. Giddins [1978] 1 QdR. 72 was relied upon as persuasive authority.

25 For the contrary view that a duty will only be imposed where there is unlawful action by the taker of information see G. Wei, "Surreptitious takings of confidential information" (1992) L.S. 302. For critical discussion of Wei's view, see the articles cited by him at p. 309.

26 The case concerned the taking of photographs under Code of Practice D (para. 4) made under the Police and Criminal Evidence Act 1984 of a suspect in police custody. The police wished to allow a "Shop watch" scheme to use the photographs. An injunction was refused on the basis that the public interest was clearly served by the disclosure in question.

27 See also Marcel and Ors. v. Commissioner of Police of the Metropolis [1992] Ch. 224, esp. at 236–237.

28 See Thompson, , Confidentiality and the Law, (London 1990), p. 73.Google Scholar

29 An approach indicated earlier in Cocov.A.N. Clark (Engineers) Limited [\969] R.P.C. 41, 48.

30 The Times 19 December 1995, Transcript from LEXIS; the case concerned an application for an injunction to restrain the defendants from making use of an idea for a dance club disclosed to them by the plaintiff.

31 In Li Yau-wai v. Genesis Films Ltd. [1987] H.K.L.R. 711, a Hong Kong decision, an "officious bystander" test was used to impose the duty of confidence (per Rhind J. at p. 719). An objective test was also employed in Lam v. Koo and Chiu [1992] Civil Transcript No. 116, see esp. p. 30 (Hong Kong Court of Appeal). See Wacks, Privacy and Press Freedom, n. 1 above, pp. 62-63; E. Loh "Intellectual Property: Breach of Confidence?" (1995) 17 E.I.P.R. 405–407.

32 Rex Features; HRH Princess of Wales; Francome v. Mirror Group Newspapers Ltd.

34 Ibid, at p. 1.

35 As a result of A-G v. Guardian Newspapers (No. 2), the defendant need not be the person to whom the information was originally "communicated".

36 [1990] A.C. 109, 269–270.

37 Ibid, at pp. 281–282.

38 Ibid, at pp. 255–256.

39 10 December 1993, Transcript from LEXIS, at p. 16.

40 Transcript, Association of Official Shorthandwriters Ltd., 8 November 1993.

41 [1995] 1 W.L.R. 804, 807.

42 [1991JF.S.R.62.

43 Lord Lester has observed ("English Judges as Lawmakers" [1993] P.L. 269 at pp. 284–285), "the court could have drawn upon Lord Keith's observations in the Spycatcher case suggesting the existence of a common law right of privacy [and developed such a right] … using the line of cases on the right of confidentiality".

44 See further Wacks, Privacy and Press Freedom, n. 1 above, pp. 55–59.

45 Wacks, op. cit. p. 56. Note, however, that since the "clean hands" doctrine is a creature of equity, it follows that if confidence develops into a common law tort, this limitation would presumably no longer apply, at least in its present form.

46 The defence has broadened its focus of concern with the result that the strength of the public interest in disclosure rather than the individual wrongdoing of the plaintiff may now be the determining factor. Further discussion is beyond the scope of this article but compare consideration of the defence in Gartside v. Outram [1856] 26 L.J. Ch. 113, 114 and (in relation to copyright) Glyn v.Western Feature Film Co. [1916] 1 Ch. 261 with Lion Laboratories v. Evans and Express Newspapers [1985] Q.B. 526, Wv. Egdell[1990] Ch. 359 and Hellewell; see also X v. Y [1988] 2 All E.R. 648 and dicta of Lord Goff inA-G v. Guardian Newspapers (No. 2) at pp. 282, 283. In applying the public interest defence the courts would be expected to interpret it in accordance with Article 10 of the European Convention on Human Rights (see the Court of Appeal ruling in Derbyshire County Council v. Times Newspapers Ltd. [1992] Q.B. 770).