Confidentiality Gone A.W.O.L

What if you told someone, you trusted, something you didn’t want anyone else to know and then they proceeded to broadcast it to the world, or even just the person next door. What would you do? Would you think “fair enough” and carry on as if nothing happened? Would you shout and scream and throw your toys out of your pram? Or, would you go to your lawyer and sue them? For some either of those three options is an entirely valid response, many more would favour the last two, but for most (obviously depending on the information that was passed on) the final option is the clincher.

This week is about Breach of Confidentiality. I can hear you cheering, deep down on the inside, kind of…

First things first, the conversation must be in confidence. Not a friendly chat. Not even a private chat. It must be in confidence. So, don’t go telling your friend all about your new idea for an app which could make you lots of money or look great on your CV if they are then going to use the idea themselves! Though, saying that, they wouldn’t be much of a friend, now would they? But the point still stands. Next the conversation must have implied an obligation of confidence. Again, your average meet up in a coffee shop would not be covered here, oh boohoo I hear you all cry! And finally, the information was disclosed without your consent and there must be at least the risk of damage. These three points, also known as elements, form the basis of Breach of Confidence and come from the case Coco v AN Clark (Engineers) Ltd. [1969] RPC 41. If you want to know a little more:

The scenario we were given in class this week was about a woman who had told her friend about an idea she had for a new TV show. She had been told that no channel wanted to pick up her idea, but a few months down the line she saw her TV show (the same name and idea) on air. We were then split into “firms”, groups of no more than six to you and me, and we were asked to write a legal opinion, which I may add now is rather brief, but you will get the gist:

M is our client. M had an idea for a TV show and arranged to meet up with a very good friend Simon (S) who works in the media industry. They meet up in the X Y Z Café and M told S about the reality TV show idea called A Line. The A Line was a TV show about the fashion industry. S stated that he would pitch the idea to TV stations and get back to her. During this meeting S had taken a few brief notes about the idea; M also had a rough outline in her diary. They were in a private booth and M is quite certain that no one could have heard them. A few days later S got back to M and told her that none of the broadcasters were interested in the idea. Six to eight months later M saw a TV programme on air called the A Line which was a TV show about the fashion industry.

The client would like to be credited for the show with payment for the original concept. The client also would have liked a role within the production side of the TV show, therefore there could be potential loss of earnings.

For an action for breach of confidence to be successful it must be established that:

  • The information has a certain degree of confidence,
  • The information was provided in circumstances importing an obligation of confidence; and
  • For an injunction or declaration to be granted, there must have been an unauthorised use or disclosure of that information and, at least, the risk of damage.

Lord Nicholls in Campbell v MGN Ltd [2004] A.C.457 at 464-5 summarised the law of confidence as “[the imposition] of a duty of confidence whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential”.

Trivial information does not count Faccenda Chicken Ltd v Fowler [1987] Ch. 117.

In our opinion we think that:

  • More information about the show itself would be needed so that a comparison between M’s idea and the show that was aired on TV.
  • Our client needs to get more evidence. This could be from S or from the producers of the A line. Communication could also be opened up with the companies that S contacted in relation to the A Line.
  • We need the bank documents/statements to do with the previous dealings to see if there relationship of business dealings.
  • A social media search could be used as evidence to support the meeting between S and M.
  • The main issue here is the fact that the conversation does not appear to be a confidential and therefore may not be covered in a breach of confidence.
  • She may have less of a case then if she pitched it to the TV producers herself.
  • As she pitched to Simon and not hearse.
  • If evidence adduced to show it was her she would have a possible against Simon and or the broadcasting Company.

Whilst we, as a class, decided that we would need more evidence if the matter were to be pursued, it did raise a set of interesting issues. Who can we trust? Have we really got to the stage in today’s society that an idea, namely a profitable one, is of more use and value to us than our friends trust and confidence? What does that say about us and the world we live in? Apparently little good. But fear not! We can always sue them and get the money back. Though, after suing them I highly doubt you would regain the friendship unless your life is a lot more like a Hollywood film than mine.

On an entirely different note, the picture is from New Orleans, LA, and is there as a heads up to a fantastic modern performance of A Streetcar Named Desire that was running in the Young Vic from July to September this year.

Remember, don’t say anything mean about people and don’t share your ideas out of confidence or breach the confidence of another!

Until next time,



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