Intellectual Property Law - Lecture 5 - Confidential Information
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Course
Intellectual Property Law (LAW09115)
Institution
Edinburgh Napier University (ENU)
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Intellectual Property Law Essentials
Lecture notes for the Intellectual Property Law module linked to Intellectual Property Law Essentials.
Author achieved a first-class grade for the module.
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Lecture 5 – Confidential Information
• What is the nature of the interest protected?
– Trade secrets and other commercially valuable information – examples recipes for
beverages and foodstuffs Coca Cola, Glayva whiskey liqueur, Baxters soups and
sauces, Tunnocks caramel wafers.
– Information where a party gains an unfair commercial benefit over another
• The law recognises many other different types of relationship of confidentiality. For example
– Personal secrets between a husband and a wife
– Personal secrets between friends
– Drawings by members of the Royal family
– State secrets
– Privileged relationships of professional confidentiality
– Employers’ secrets
– Other e.g. Fraser –v- Thames Television [1984] 1 QB 44
• Is there a statutory basis for the right? No. It is based on common law. Strictly an action in
relation to confidential information is not the same as an action asserting a right of privacy.
But certain statutes do give restricted rights of privacy. e.g. …
• Data Protection Act 1998 – protects the privacy of personal data and sensitive personal data
held on a filing system
• Human rights Act 1998 Article 8 but this needs to be balanced against Article 10. We’ll look
further at this later
• What is the summary of the common law protection?
• Coco -v- A. N. Clark (Eng.) Ltd [1969] RPC 41
• Three requirements:
– 1 The information must have the quality of confidence;
– 2 The information must have been imparted in circumstances implying an obligation
of confidence; and
– 3 The information is used without authority.
The Quality of Confidence:
• Saltman Engineering Co. -v- Campbell Engineering Co. [1963] 3 All ER 414.
, – It must not be something which is public property and public knowledge
• O. Mustad & Son -v- S. Allcock & Co. Ltd & Dosen [1963] 3 All ER 416
– Once the information has been published it is no longer confidential.
– “a person who has obtained information in confidence is not entitled to use it as a
springboard for activities detrimental to the person who made the confidential
communication, and springboard it remains even when all the features have been
published or can be ascertained by actual inspection by any member of the public.”
• Trade secrets
• Thomas Marshall (Exports) Ltd v Guinle [1979] 1 Ch. 227
– 1. The information must be such that the owner believes that the release of it would
be injurious to him or advantageous to his rivals.
– 2. The owner must believe that the information is confidential or secret and not
already in the pubic domain.
– 3. The above two subjective beliefs must be objectively reasonable.
– 4. Trade practices and usage will be taken into account in determining whether
information has the necessary quality of confidence.
• Other confidential information
• Confidence between husband and wife: In Argyll v Argyll [1967] Ch. 302
• Extra-marital affairs - Woodward -v- Hutchins [1977] 2 All ER 751
• Information imparted in confidence between friends - Stephens -v- Avery [1988] 1 Ch 457
– “the mere fact that two people know a secret does not mean that it is not
confidential. If in fact, information is secret, then in my judgment it is capable of
being kept secret by the imposition of a duty of confidence on any person to whom it
is communicated. Information only ceases to be capable of protection as confidential
when it is in fact known to a substantial number of people.”
• Privileged professional confidentiality – lawyers, bankers, etc.
• Government Secrets
• Attorney -General v Guardian Newspapers Ltd [1988] 3 All ER 567 and Attorney -General v
The Observer Ltd [1989] AC 109 ( the "Spycatcher" cases)
Circumstances inferring an obligation of confidence
1. Contractual confidentiality
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