3B.4.4 Duty of confidentiality

Question 1

The duty of confidentiality

Answer 1

The duty of confidentiality covers situations where information is given in confidence with the exception that it will remain private.

Question 2

What articles does the duty of confidentiality interfere with?

Answer 2

Article 8 and Article 10

Question 3

What can be done about a breach of confidence?

Answer 3

• If the breach has not yet occurred, it may be possible to obtain an injunction to prevent it.
• If the beach has already happened, action may be brought for the breach to recover compensation.

Question 4

For a breach of a duty of confidentiality, the claimant must prove…

Answer 4

• The information was obtained in a way which gives rise to a duty of confidence (such as giving financial details to an accountant, or medical information to a doctor).
• It must have the ‘quality of confidence’.
• It can arise within an employment contract.
• It must be used in an unauthorised way.
• The claimant must suffer a detriment from the use.

Question 5

Defences to a claim of breach of confidence

Answer 5

• Information is already in the public domain.
• Information was not confidential.
• Public interest in discloser (the whistleblower’s defence).

Question 6

Key cases for duty of confidentiality

Answer 6

• HRH Prince of Wales v Associated Newspapers (2006)
• Duchess of Argyll v Duke of Argyll (1967)
• Douglas v Hello (2001)
• Mosley v News Group Newspapers (2008)
• Von Hannover v Germany (2004)

Question 7

HRH Prince of Wales v Associated Newspapers (2006)

Answer 7

The newspapers published extracts obtained secretly from the Prince of Wales’ handwritten diaries. He won a case for beach of confidence.

Question 8

Duchess of Argyll v Duke of Argyll (1967)

Answer 8

An injunction was granted to prevent the publication of confidential information between the Duke and Duchess of Argyll. The newspaper to which the Duke had communicated these details was prevented from publishing.

Question 9

Douglas v Hello (2001)

Answer 9

Unauthorised pictures from Michael Douglas’s wedding were published by Hello! Magazine. The couple challenged the publication, claiming a violation of Article 8.

The court said that any right to private life had to be balanced against the right under Article 10 (freedom of expression). The court refused to make an injunction preventing Hello! from publishing the pictures. This was mainly because the Cs agreed that another magazine could publish pictures.

Question 10

Mosley v News Group Newspapers (2008)

Answer 10

The newspaper published a story about the claimant’s sexual activities with prostitutes. As he was the head of Formula One racing, the newspaper argued that the public had the right to know.

Held: There was no public interest and his right to private life (article 8) had been violated.

Question 11

Von Hannover v Germany (2004)

Answer 11

Princess Caroline of Monaco was secretly photographed with her children whilst in a café and the photographs were published in a Germany magazine.

The ECtHR held that the photographs were highly intrusive and that there was no public interest to merit the publication.

Question 12

Cases for a breach of duty of confidentiality, where the D is already in the public eye.

Answer 12

• Flitcroft v MGN Ltd (2002)
• Campbell v MGN (2004)