The duty of confidentiality

The duty of confidentiality is an essential…

Common law duty

Explain the duty of confidentiality

This covers situations where information is given in confidence with the expectation that it will remain private

What can be done about a breach of confidence if the breach has not yet occurred ?

May be possible to obtain an injunction to prevent it

What can be done if the breach has already happened

Action may be brought forward for the breach to recover compensation

The duty of confidentiality is not a….

Absolute duty

Why is it not an absolute duty ?

There are many occasions when confidential information may be disclosed e.g at the persons request/consent

If there is no consent to the disclosure of confidential information then..

The disclosure is unauthorised

Statutory provisions covering the duty would need to be balanced against…

One individual’s A8 right and another’s A10

Case for must balance A8 right with A10

Douglas

There are how many elements to determine breach of confidence ?

4

Element (a)

The disclosure was of Information which was obtained in a way which gives rise to a duty of confidence e.g giving medical information to a doctor

Element (b)

It must have the ‘quality of confidence’ e.g sensitive,not publicly known, person receiving the info knows its in a position of confidence

Element ( c )

It must have been disclosed in an unauthorised way (without consent)

Element ( d )

The claimant must suffer a detriment from the disclosure/ use

How many defences are there to breach of confidentiality

3

Defence (a)

The info was already in public domain - means the status of the info is NOW already known

Defence (b)

The info was not confidential - meaning the nature of the info was not serious enough to be confidential

Defence ( c )

There is public interest in the disclosure

Case for public interest in the disclosure

Mosley