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The Legal Framework Common Law

Common law jurisdictions have established torts to protect individuals’ rights to privacy. Torts are essentially civil wrongs that provide individuals with a cause of action for damages in respect of the breach of a legal duty. A number of common law torts afford protection to individuals’ private interests and their confidential information. With regard to the use and disclosure of personal information, the tort of breach of confidence is clearly the most relevant.

The common law tort of breach of confidence deals with unauthorised use or disclosure of certain types of confidential information and may protect such information on the basis of actual or deemed agreement to keep such information secret.

Breach of Confidence

A common law of breach of confidence action may arise where information carrying the necessary quality of confidence is communicated in circumstances entailing an obligation of confidence and the information is later used in an unauthorised way.

Public authorities must be mindful of the extent of the duty of confidence they owe in considering whether to take part in data-sharing exercises or whether they are precluded from so doing.

The courts have generally recognised that a public authority may ignore the duty of confidence it owes with regard to a particular information item:

• Where there is legal requirement (either under statute or a court order) to disclose the information (for instance, notification of certain diseases to public health authorities);

• Where there is an overriding duty to the public (for instance, the information concerns the commission of a criminal offence or relates to life-threatening circumstances); or

• Where the individual to whom the information relates has consented to the disclosure.

Furthermore, while there is an obligation on the part of the recipient of the information "not to take unfair advantage of it", the purpose for which the information may be used need not necessarily be that for which it was provided. A breach of confidence will only occur where the disclosure of information is an abuse or unconscionable to a reasonable man.

However, it is clear that the action for breach of confidence has a broad application to personal information provided to public authorities. Public authorities must be mindful of the extent of the duty they owe in considering whether to take part in data-sharing exercises or whether they are precluded from so doing.

Breach of confidence will depend of a range of circumstances.

There are certain cases in which doctors could disclose confidential personal information without the patient’s consent because the greater benefit might outweigh the duty of confidence.

The case studies under the Data Protection section and Human Rights section are also relevant.

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Last update: 19 June 2003