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ausip:breach-of-confidence [2018/10/30 17:39]
jessiej_87 Edit and additional content
ausip:breach-of-confidence [2018/11/02 14:20]
jessiej_87 Edit and additional content
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 # Breach of Confidence # Breach of Confidence
  
-The equitable doctrine of breach of confidence is a remedy that protects all sorts of interests such privacy and trade secrets. ​ It sometimes operates as a quasi privacy right. Whilst it is not as straight forward as enforcing a contractual non disclosure agreement for example in some instances the breach of confidence doctrine can be used to prevent the disclosure of private or secret information. ​+The equitable doctrine of breach of confidence is a remedy that protects all sorts of interests such as privacy and trade secrets. ​ It sometimes operates as a quasi-privacy right. Whilst it is not as straight forward as enforcing a contractual non disclosure agreement for examplein some instances the breach of confidence doctrine can be used to prevent the disclosure of private or secret information. ​
  
 **Video overview by Nicolas Suzor on [Breach of Confidence](https://​www.youtube.com/​watch?​v=Qai12dUAKbA&​index=3&​list=PLa0bKPnUKQrygyeH-viiW_85BrcICvAve).** **Video overview by Nicolas Suzor on [Breach of Confidence](https://​www.youtube.com/​watch?​v=Qai12dUAKbA&​index=3&​list=PLa0bKPnUKQrygyeH-viiW_85BrcICvAve).**
  
-## Breach of Confidence ​+## Origins of Breach of Confidence ​in Australia ​
  
-As an equitable doctrine it is not as easy to enforce as contractual agreements. The doctrine does not confer a property right but it does binds the conscience of a person receiving a secret. There are many uses for the doctrine such as:+There is no one body which governs confidential information. In Australia, we have a number of statues and relationship specific situations which seek to protect various types of confidential information. These are specific to types of relationships or duties owned in situations. For instance, a lawyer has a legal professional privilege and the //​Corporations Act 2001// (Cth) s 183(1) imposes obligations of confidence. These are just two examples, there are many others which set out specific obligations of confidence or protect secret information. Confidence may also be contractual,​ such as in a non-disclosure agreement. ​     
 + 
 +In situations where there is no statue, contract or relationships which expressly protect confidential information,​ the doctrine of breach of confidence may assist.  
 + 
 +## What is Breach of Confidence?​ 
 + 
 +As an equitable doctrine it is not as easy to enforce as contractual agreements. The doctrine ​of breach of confidence ​does not confer a property right but it does bind the conscience of a person receiving a secret. There are many uses for the doctrine such as:
  
 - Trade secrets, know-how, customer information,​ commercialisation information;​ - Trade secrets, know-how, customer information,​ commercialisation information;​
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 Each of these elements will be considered in turn.  Each of these elements will be considered in turn. 
  
-###Element 1: Quality of Confidence+### Element 1: Quality of Confidence
  
 This element requires is based on a requirement of secrecy. Should the information enter the public domain, the quality of confidence is lost. It is sufficient for relative secrecy ((Gee v Day)), total secrecy is not required. ​ This element requires is based on a requirement of secrecy. Should the information enter the public domain, the quality of confidence is lost. It is sufficient for relative secrecy ((Gee v Day)), total secrecy is not required. ​
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 Leaked information was embarrassing to Cth Government. Once the information was published, it lost its character of confidentiality. Leaked information was embarrassing to Cth Government. Once the information was published, it lost its character of confidentiality.
  
-> “The sales of the book already made, including those made to Indonesia and the United States, the countries most likely to be affected by its contents, and the publication of the first instalment in the two newspapers, indicate that the detriment which the plaintiff apprehends will not be avoided by the grant of an injunction. In other circumstances the circulation of about 100 copies of a book may not be enough to disentitle the possessor of confidential information from protection by injunction, but in this case it is likely that what is in the book will become known to an ever-widening group of people here and overseas, including foreign governments.” (54, Mason J)+> “The sales of the book already made, including those made to Indonesia and the United States, the countries most likely to be affected by its contents, and the publication of the first instalment in the two newspapers, indicate that the detriment which the plaintiff apprehends will not be avoided by the grant of an injunction. In other circumstances the circulation of about 100 copies of a book may not be enough to disentitle the possessor of confidential information from protection by injunction, but in this case it is likely that what is in the book will become known to an ever-widening group of people here and overseas, including foreign governments”(54, Mason J)
  
  
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-###Element 3 - Actual or Threatened Use+### Element 3 - Actual or Threatened Use
  
 The third element involves actual or threatened use of the confidential information. This includes: The third element involves actual or threatened use of the confidential information. This includes:
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   * Exposure to discussion and / or criticism.   * Exposure to discussion and / or criticism.
  
-##​Justification Defence+## Justification Defence
  
 The defence of justification may be used to defend the disclosure. Information can be disclosed where there is just cause or excuse. ​ The defence of justification may be used to defend the disclosure. Information can be disclosed where there is just cause or excuse. ​
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     ​     ​
  
-##Remedies+## Remedies
  
 There are a number of remedies available for breach of confidence. ​ There are a number of remedies available for breach of confidence. ​
  • ausip/breach-of-confidence.txt
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