TOPIC 3 PUBLICATION OF INFORMATION – CONFIDENTIAL INFORMATION
TOPIK 3 07 ABCR3203 Topic 3
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1. Explain what is confidential information;
2. Identify types of confidential information;
3. Describe the importance of protecting certain kinds of information; and
4. Discuss restrictions to keep certain information secret.
INTRODUCTION
Figure 3.1: Information gained through newspaper articles (media)
Information has become increasingly important and is regarded as a property,
especially in the media world where information is a subject of sale (see Figure
3.1). However, not all information can be bought and sold. In certain
circumstances, the law imposes a duty on the recipient of information to keep
certain information confidential. This duty arises where there is obligation in the
form of an express or implied term in an employment or other contract or when
the information possesses a confidential character.
3.1 WHAT IS CONFIDENTIAL INFORMATION?
Did you know that confidential information law protects only information that is
secret? If the information is already in the public domain, it is no longer protected
by this area of law. So, what is confidential information? The case of Electro Cad
Australia Pty Ltd & 2 Ors v Mejati RCS Sdn Bhd & Ors [1998] 3 AMR 2555; [1998]
3 CLJ Supp 196 (HC) below explains what confidential information is (Juriah
Abdul Jalil, 2003):
Electro Cad Australia Pty Ltd & 2 Ors v Mejati RCS Sdn Bhd & Ors [1998] 3
AMR 2555; [1998] 3 CLJ Supp 196 (HC)
"Confidential information is generally information which is the object of an
obligation of confidence and is used to cover all information of a confidential
character. This includes:
1. Trade secrets;
2. Literary and artistic secrets;
3. Personal secrets; and
4. Public and government secrets.
...The law of Intellectual Property by Staniforth Ricketson sets out a useful
summary at p, 822 of the factors relevant to determining whether a given body
of information is confidential. They are:
1. The extent to which the information is known outside his (the ownerÊs)
business;
2. The extent to which it is known by employees and others involved in his
business;
3. The extent of measures taken by him to guard the secrecy of the
information;
4. The value of the information to him and his competitors; and
5. The amount of effort or money expended by him in developing the
information.
The ease or difficulty with which the information could be properly acquired or duplicated by others (i.e. by their independent endeavours).‰
3.2 TYPES OF CONFIDENTIAL INFORMATION
There are four types of confidential information as shown in Figure 3.2.
Figure 3.2: Types of confidential information
We will discuss further the types of confidential information in the following
subtopics.
3.2.1 Trade Secrets
According to Juriah Abdul Jalil (2003), trade secrets refer to confidential
commercial information or information that is fundamental to the success,
development and well-being of a business. It may include formulas, methods,
techniques and list of customers.
Example:
Faccenda Chicken Ltd v Fowler & Ors [1985] FSR 105
„In this case an ex-employee started a rival business using sales information
obtained while in employment. The sales information relates to the name and
address of customers, their requirements, the timing of deliveries, the price
and the detail routes taken. The court however held that the sales information
was not confidential because it was information that remained in the
employeeÊs head and became part of his own skill and knowledge applied in
the course of his employerÊs business. The court laid down three kinds of
information that may be acquired an employee in the course of employment;
1. Information which, because of its trivial character or its easy accessibility
from public sources of information cannot be regarded by reasonable
persons or by the law as confidential at all. The servant is at liberty to
impart it during his service or afterwards to anyone he pleases even his
masterÊs competitor.
2. Information which the servant must treat as confidential (either because he
is expressly told it is confidential, or because from its character it obviously
is so) but which once learned necessarily remains in the servantÊs head and
becomes part of his own skill and knowledge applied in the course of his
masterÊs business. So long as the employment continues, he cannot
otherwise use or disclose such information without infidelity and therefore
breach of contract. But when he is no longer in the same service, the law
allows him to use his full skill and knowledge for his own benefit in
competition with his former master. If an employer wants to protect
information of this kind, he cannot do so by an express stipulation
restraining the servant from competing with him within reasonable limits
of time and space after the termination of his employment.
3. Specific trade secrets so confidential that, even though they may
necessarily have been learned by heart, even though the servant may have
left the service, they cannot lawfully are used for anyoneÊs benefit but the
masterÊs.‰
In this case, the sales information falls under the second class.
3.2.2 Literary and Artistic Secrets
It refers to works not yet protected by copyright law. Specifically, this refers to
the time when these works are unpublished.
Gilbert v Star Newspaper Co (Ltd) (1894) 11 TLR 4
„The case concerned unpublished written plot and dramatic ideas of an opera
where the material has come to the defendant in circumstances giving rise to a
duty of confidence. The court granted an injunction to restrain publication of
the details of the plot of the plaintiffÊs opera prior to its public performance
even though the rehearsal had taken place weeks before the public
performance and many people had known about it.‰
3.2.3 Personal Secrets
Personal secrets refer to information considered private or secret by a person, for
example information relating to marital relationship, sexual behaviour or medical
conditions of a person (Juriah Abdul Jalil, 2003).
Examples:
Lennon v News Group Newspaper Ltd [1956] FSR 573
"The plaintiff, a former member of the Beatles sought to restrain his ex-wife
and the newspaper from publishing articles disclosing details of the
relationships between them. The court held that the information relating to
their marriage was no longer their private affair because both parties had put
it into the public domain."
Duke of Argyll v Duchess of Argyll & Anor (1962) SLT 333 (HL)
"The plaintiff brought an action for divorce against the defendant on the ground
of adultery and averted that the defendant had recorded certain meetings with
her paramour in a diary. The defendant denied the averment. The plaintiff
requested for the production of the diary. The issue in this case was whether
consent to proof before answer affected waiver of confidentiality? The court
held that the mere admission that a diary existed did not affect the right to claim
confidentiality. It is common ground that a diary is confidential and cannot be
recovered and used in evidence unless something has occurred to destroy that
confidentiality."
Other cases for further reading are:
(a) Douglas v Hello (No 1) [2201] FSR 732;
(b) Naomi Campbell v Miror Group Newspaper [2002] EWHC 499; and
(c) Michael Barrymore v News Group Newspaper Ltd [1997] FSR 600.
3.2.4 Government Information – Governed by Official Secrets Act
This refers to information imparted by the government. However in Malaysia,
this information is governed by Official Secrets Act 1972.
3.3 REQUIREMENTS FOR PROTECTION UNDER LAW OF CONFIDENTIAL INFORMATION
There are three requirements for the information to be protected under this area
of law. These requirements were established in the case of Coco v. A.N. Clark
(Engineers) Ltd. [1969] R.P.C. 41.
Coco v. A.N. Clark (Engineers) Ltd. [1969] R.P.C. 41
In this case the plaintiff brought an action to restrain the defendants from
misusing information communicated to them in confidence for the purpose of
a joint venture. The plaintiff designed and developed a mini-bike moped
engine and sought the defendantÊs expertise to manufacture them. Neither
party came to an agreement. The plaintiff later sued the defendant when the
later produced a similar machine. Nevertheless, the plaintiff failed in this case
because they failed to establish that the information was confidential in nature
and they also failed to reveal that the similarities between the two engines
were achieved by the use of the information, or that his engine had original
qualities which would amount to confidential information.
Coco v. Clark established three requirements for the law of confidence to apply:
(a) The information has the necessary quality of confidence;
(b) The information has been imparted in circumstances imposing an obligation
of confidence; and
(c) There is an unauthorised use of the information to the detriment of the
original communicator of the information.
TOPIC 3 PUBLICATION OF INFORMATION – CONFIDENTIAL INFORMATION ? 55
SELF-CHECK 3.1
Consider whether there arises a duty of confidence in the situations
below:
1. Brown has an idea for a new radio programme. He secretly tells
Orange the idea. Discuss.
2. A journalist interviewed an employee of a company who revealed the
companyÊs secret marketing strategies. However, the employee
informed the journalist that he should never publish the information.
Discuss.
ACTIVITY 3.1
Discuss the case below:
Westpac Banking Corp. v John Fairfax Group Pty Ltd (1991) 19 IPR 51
(Westpac Letters Case)
„WestpacÊs solicitors, Allen Allen and Hemsley, wrote to the bank
advising it on foreign exchange dealings of its merchant banking
subsidiary Partnership Pacific Limited. The letters detailed several
instances of very serious breaches of banking regulations and practices. The
merchant bank had used dubious methods in its dealings with customerÊs
foreign exchange investments and other activities. Both the Sydney
Morning Herald and the Age obtained copies of the letters and published
articles referring to them and some of their contents. Westpac sought
injunctions from the court to prevent further publication, arguing that the
publication was a breach of confidence and also infringed the copyright in
the letters.‰
? In certain circumstances, the law imposes a duty on the recipient of information
to keep certain information confidential.
? There are four types of confidential information:
? Trade secrets;
? Artistic and literary secrets;
? Personal secrets; and
? Government secrets.
? There are three requirements for the law of confidence to apply:
? The information has the necessary quality of confidence;
? The information has been imparted in circumstances imposing an
obligation of confidence; and
? There is an unauthorised use of the information to the detriment of the
original communicator of the information.
Artistic secrets
Personal secrets
Government secrets
Trade secrets
Necessary quality of confidence
TOPIK 3 07 ABCR3203 Topic 3
LEARNING OUTCOMES
By the end of this topic, you should be able to:
1. Explain what is confidential information;
2. Identify types of confidential information;
3. Describe the importance of protecting certain kinds of information; and
4. Discuss restrictions to keep certain information secret.
INTRODUCTION
Figure 3.1: Information gained through newspaper articles (media)
Information has become increasingly important and is regarded as a property,
especially in the media world where information is a subject of sale (see Figure
3.1). However, not all information can be bought and sold. In certain
circumstances, the law imposes a duty on the recipient of information to keep
certain information confidential. This duty arises where there is obligation in the
form of an express or implied term in an employment or other contract or when
the information possesses a confidential character.
3.1 WHAT IS CONFIDENTIAL INFORMATION?
Did you know that confidential information law protects only information that is
secret? If the information is already in the public domain, it is no longer protected
by this area of law. So, what is confidential information? The case of Electro Cad
Australia Pty Ltd & 2 Ors v Mejati RCS Sdn Bhd & Ors [1998] 3 AMR 2555; [1998]
3 CLJ Supp 196 (HC) below explains what confidential information is (Juriah
Abdul Jalil, 2003):
Electro Cad Australia Pty Ltd & 2 Ors v Mejati RCS Sdn Bhd & Ors [1998] 3
AMR 2555; [1998] 3 CLJ Supp 196 (HC)
"Confidential information is generally information which is the object of an
obligation of confidence and is used to cover all information of a confidential
character. This includes:
1. Trade secrets;
2. Literary and artistic secrets;
3. Personal secrets; and
4. Public and government secrets.
...The law of Intellectual Property by Staniforth Ricketson sets out a useful
summary at p, 822 of the factors relevant to determining whether a given body
of information is confidential. They are:
1. The extent to which the information is known outside his (the ownerÊs)
business;
2. The extent to which it is known by employees and others involved in his
business;
3. The extent of measures taken by him to guard the secrecy of the
information;
4. The value of the information to him and his competitors; and
5. The amount of effort or money expended by him in developing the
information.
The ease or difficulty with which the information could be properly acquired or duplicated by others (i.e. by their independent endeavours).‰
3.2 TYPES OF CONFIDENTIAL INFORMATION
There are four types of confidential information as shown in Figure 3.2.
Figure 3.2: Types of confidential information
We will discuss further the types of confidential information in the following
subtopics.
3.2.1 Trade Secrets
According to Juriah Abdul Jalil (2003), trade secrets refer to confidential
commercial information or information that is fundamental to the success,
development and well-being of a business. It may include formulas, methods,
techniques and list of customers.
Example:
Faccenda Chicken Ltd v Fowler & Ors [1985] FSR 105
„In this case an ex-employee started a rival business using sales information
obtained while in employment. The sales information relates to the name and
address of customers, their requirements, the timing of deliveries, the price
and the detail routes taken. The court however held that the sales information
was not confidential because it was information that remained in the
employeeÊs head and became part of his own skill and knowledge applied in
the course of his employerÊs business. The court laid down three kinds of
information that may be acquired an employee in the course of employment;
1. Information which, because of its trivial character or its easy accessibility
from public sources of information cannot be regarded by reasonable
persons or by the law as confidential at all. The servant is at liberty to
impart it during his service or afterwards to anyone he pleases even his
masterÊs competitor.
2. Information which the servant must treat as confidential (either because he
is expressly told it is confidential, or because from its character it obviously
is so) but which once learned necessarily remains in the servantÊs head and
becomes part of his own skill and knowledge applied in the course of his
masterÊs business. So long as the employment continues, he cannot
otherwise use or disclose such information without infidelity and therefore
breach of contract. But when he is no longer in the same service, the law
allows him to use his full skill and knowledge for his own benefit in
competition with his former master. If an employer wants to protect
information of this kind, he cannot do so by an express stipulation
restraining the servant from competing with him within reasonable limits
of time and space after the termination of his employment.
3. Specific trade secrets so confidential that, even though they may
necessarily have been learned by heart, even though the servant may have
left the service, they cannot lawfully are used for anyoneÊs benefit but the
masterÊs.‰
In this case, the sales information falls under the second class.
3.2.2 Literary and Artistic Secrets
It refers to works not yet protected by copyright law. Specifically, this refers to
the time when these works are unpublished.
Gilbert v Star Newspaper Co (Ltd) (1894) 11 TLR 4
„The case concerned unpublished written plot and dramatic ideas of an opera
where the material has come to the defendant in circumstances giving rise to a
duty of confidence. The court granted an injunction to restrain publication of
the details of the plot of the plaintiffÊs opera prior to its public performance
even though the rehearsal had taken place weeks before the public
performance and many people had known about it.‰
3.2.3 Personal Secrets
Personal secrets refer to information considered private or secret by a person, for
example information relating to marital relationship, sexual behaviour or medical
conditions of a person (Juriah Abdul Jalil, 2003).
Examples:
Lennon v News Group Newspaper Ltd [1956] FSR 573
"The plaintiff, a former member of the Beatles sought to restrain his ex-wife
and the newspaper from publishing articles disclosing details of the
relationships between them. The court held that the information relating to
their marriage was no longer their private affair because both parties had put
it into the public domain."
Duke of Argyll v Duchess of Argyll & Anor (1962) SLT 333 (HL)
"The plaintiff brought an action for divorce against the defendant on the ground
of adultery and averted that the defendant had recorded certain meetings with
her paramour in a diary. The defendant denied the averment. The plaintiff
requested for the production of the diary. The issue in this case was whether
consent to proof before answer affected waiver of confidentiality? The court
held that the mere admission that a diary existed did not affect the right to claim
confidentiality. It is common ground that a diary is confidential and cannot be
recovered and used in evidence unless something has occurred to destroy that
confidentiality."
Other cases for further reading are:
(a) Douglas v Hello (No 1) [2201] FSR 732;
(b) Naomi Campbell v Miror Group Newspaper [2002] EWHC 499; and
(c) Michael Barrymore v News Group Newspaper Ltd [1997] FSR 600.
3.2.4 Government Information – Governed by Official Secrets Act
This refers to information imparted by the government. However in Malaysia,
this information is governed by Official Secrets Act 1972.
3.3 REQUIREMENTS FOR PROTECTION UNDER LAW OF CONFIDENTIAL INFORMATION
There are three requirements for the information to be protected under this area
of law. These requirements were established in the case of Coco v. A.N. Clark
(Engineers) Ltd. [1969] R.P.C. 41.
Coco v. A.N. Clark (Engineers) Ltd. [1969] R.P.C. 41
In this case the plaintiff brought an action to restrain the defendants from
misusing information communicated to them in confidence for the purpose of
a joint venture. The plaintiff designed and developed a mini-bike moped
engine and sought the defendantÊs expertise to manufacture them. Neither
party came to an agreement. The plaintiff later sued the defendant when the
later produced a similar machine. Nevertheless, the plaintiff failed in this case
because they failed to establish that the information was confidential in nature
and they also failed to reveal that the similarities between the two engines
were achieved by the use of the information, or that his engine had original
qualities which would amount to confidential information.
Coco v. Clark established three requirements for the law of confidence to apply:
(a) The information has the necessary quality of confidence;
(b) The information has been imparted in circumstances imposing an obligation
of confidence; and
(c) There is an unauthorised use of the information to the detriment of the
original communicator of the information.
TOPIC 3 PUBLICATION OF INFORMATION – CONFIDENTIAL INFORMATION ? 55
SELF-CHECK 3.1
Consider whether there arises a duty of confidence in the situations
below:
1. Brown has an idea for a new radio programme. He secretly tells
Orange the idea. Discuss.
2. A journalist interviewed an employee of a company who revealed the
companyÊs secret marketing strategies. However, the employee
informed the journalist that he should never publish the information.
Discuss.
ACTIVITY 3.1
Discuss the case below:
Westpac Banking Corp. v John Fairfax Group Pty Ltd (1991) 19 IPR 51
(Westpac Letters Case)
„WestpacÊs solicitors, Allen Allen and Hemsley, wrote to the bank
advising it on foreign exchange dealings of its merchant banking
subsidiary Partnership Pacific Limited. The letters detailed several
instances of very serious breaches of banking regulations and practices. The
merchant bank had used dubious methods in its dealings with customerÊs
foreign exchange investments and other activities. Both the Sydney
Morning Herald and the Age obtained copies of the letters and published
articles referring to them and some of their contents. Westpac sought
injunctions from the court to prevent further publication, arguing that the
publication was a breach of confidence and also infringed the copyright in
the letters.‰
? In certain circumstances, the law imposes a duty on the recipient of information
to keep certain information confidential.
? There are four types of confidential information:
? Trade secrets;
? Artistic and literary secrets;
? Personal secrets; and
? Government secrets.
? There are three requirements for the law of confidence to apply:
? The information has the necessary quality of confidence;
? The information has been imparted in circumstances imposing an
obligation of confidence; and
? There is an unauthorised use of the information to the detriment of the
original communicator of the information.
Artistic secrets
Personal secrets
Government secrets
Trade secrets
Necessary quality of confidence
No comments:
Post a Comment