As mentioned in What Happens If There Is a Privacy Breach of NDA Information? a breach of confidence is the unauthorised use of information which was disclosed. The elements that give rise to a breach of confidence are:
Elements of a Breach of Confidence
- Information must have to be confidential – essentially this information should not be available in the public domain
- Information must be taken under an obligation of confidence – a reasonable person would know that it was confidential
- Use of confidential information caused damage to you – the accused divulged and used that information knowing that it would detriment you
Sometimes the situation arises where a third party or stranger gets access to this confidential information. If that third party has knowledge of the obligation of confidence liability may arise. To clarify this, reach out to one of our commercial lawyers.
Before making any claim against someone for a breach of confidence, it is important to ensure there is no valid defence for that information being disclosed. There are a few instances where disclosing confidential information is legally
- If that information threatens the general public (best interests of the public)
- Disclosed to proper authorities (e.g. police, regulatory etc)
- Ordered during court proceedings
If you are successful in a claim for breach of confidence, the remedies available are:
- An injunction – court order requiring a person to do or cease doing a specific action
- Account of profits – action against a person in a fiduciary relationship to recover the profits made due to the breach in order to prevent unjust enrichment
- Compensation for economic loss (may even be able to claim compensation if there was no commercial loss due to facing other losses involved in chasing the breach)
Important to note that this area is dealt with under equity including remedies. It would be best to seek legal advice from one of the business lawyers available in our marketplace.
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