TOPIC 3 PUBLICATION OF INFORMATION – CONFIDENTIAL
INFORMATION
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
owner’s) 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 employee’s
head and became part of his own skill and knowledge applied in the
course of his
employer’s 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 master’s 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 servant’s head and
becomes part of his own skill and knowledge applied in the course of
his master’s 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 anyone’s benefit but the master’s. 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 plaintiff’s 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 defendant’s
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.
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 company’s 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) Westpac’s 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 customer’s 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
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