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1. English law also provides remedies for breach of confidence. A duty of confidence arises when confidential information comes to the knowledge of a person (including public authorities such as HSE) in circumstances where it would be unfair were that information to be disclosed to others (e.g. because the recipient of the information was on notice, or had agreed, that the information was to be so treated).
2. Breach of confidence is the breach of a duty which can give rise to a civil claim1. Breach of confidence will usually arise in connection with the disclosure of information which has a commercial value, but can also include personal information about individuals.
3. However, the law governing breach of confidence is complex and continues to develop to “reflect changes in society, technology and business practice”2. Further, Article. 8 of the European Convention on Human Rights (dealing with the right to privacy) has reshaped the action for breach of confidence so that it now protects the misuse of private information3. Therefore, if in doubt you should seek legal advice from the Legal Adviser’s Office.
4. For an action for breach of confidence to be successful it must be established that:
5. The courts have held that the duty of confidence only applies to information not already in the public domain. It does not apply to information which is trivial5.
6. The duty that confidence should be preserved may be outweighed by some other public interest factor which favours use or disclosure, either to the world at large or to the appropriate authorities. This may require a court to balance the public interest in maintaining confidentiality against the public interest favouring use or disclosure6.
7. Certain public bodies, including HSE, have both statutory7 and common law8 obligations to keep certain information confidential. However, the police may make reasonable use of such material for the purpose of the prevention and detection of crime9.
8. Disclosure of confidential information will not be restrained where there is a ‘just cause or excuse for disclosing it’10.
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