What is the duty of confidence?
People have a right to expect you to protect information they have shared with you in confidence.
When you receive such information, you may owe a “duty of confidence” to the person who gave it to you if certain conditions are met.
Even if you received the information via a third party, you may still owe a duty of confidence to the original confider.
Normally, this means that you must not share it with anyone else.
If you are under an obligation to keep information confidential but you disclose it without authorisation or justification, you could be breaching confidence. The person to whom you owed that duty of confidence could bring a legal claim against you for the breach. This is called an “action for breach of confidence”.
We explain what you need to consider in the section “Would disclosure constitute a breach of confidence?”.
Often, the duty of confidence comes from common law. That means that there is no Act of Parliament that states comprehensively when the duty applies. The rules of the common law of confidence have evolved over time, as a result of various decisions by the courts.
In HM Attorney General v The Observer Limited and others [1990] 1 AC 109, Lord Griffiths explained:
“the law of confidence (…) is judge-made law and reflects the willingness of the judges to give a remedy to protect people from being taken advantage of by those they have trusted with confidential information”
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The duty of confidence can arise out of equity (fairness), contract or statute.
When a duty of confidence arises out of contract, for example when you receive commercially sensitive information, section 43 (commercial interests) could be relevant.
When confidentiality arises out of statute, for example when a piece of legislation requires you to keep certain types of information confidential, section 44 (prohibitions on disclosure) could apply.
Recently, the cause of action for breach of confidence has been extended to cover the misuse of private information. Generally, information is private if the person to whom it relates would have a reasonable expectation of privacy about it.
When a request asks for information about someone’s personal and private matters, section 40 is likely a more appropriate exemption.
We explain how section 41 may apply to private information in the section “How does section 41 apply in the context of requests for private information?”.