BLAW10002 Lecture Notes - Lecture 8: Trade Secret, Pentagon Papers, Edward Snowden
14 May 2018
School
Department
Course
Professor
Confidential Information
Three types:
I. Personal
II. Commercial
III. Government
Distinction with privacy
•Privacy is more difficult to define, usually defined with reference to examples, rather than a
underlying, unifying theory
•No common law right to privacy
•Confidentiality is more sensitive
•Breach of confidence is a common law right
Secrecy as a matter of civil and criminal law
•Breach of confidence is from the ‘equity’ branch of common law
-Equity ensures the common law does not produce harsh results
-Breach of confidence is one of the doctrines that equity includes
•In a commercial setting, breach of confidence is referred to as ‘trade secret law’
Socio-Economic factors enlivening the need for confidentiality (p.199)
•1960s: increasing complexity of industrial manufacturing process
-Sub-contracting of tasks and the sharing of commercially valuable information to the
individual contractors that perform these tasks
•Post-war: the flourishing of the ‘small inventor’ - who sold innovations to large enterprises
-‘Contracts to negotiate contracts’ - protecting inventors while discussing their creations
with potential clients
-Breach of confidence is “a broad principle of equity that he who has received information in
confidence shall not take unfair advantage of it”
-Coco v AN Clark (engineers) Ltd
•Breach of confidence doctrine was best viewed as a ‘fiduciary liability’ - a relationship of trust
between parties !
Traditional Elements (from Coco v A N Clark)
1. Information must be confidential
-Not well known information, not in the public domain
2. Must have been ‘imparted’ in circumstances importing an obligation of confidence
3. Unauthorised disclosure
Basic Elements:
Limitations of the Traditional Elements approach
•In Coco, Judge said law will not look after those who share information in situations where
they may me overheard
-Doctrine does not protect those who “exchange confidences on trains or buses” or speak
over “garden walls” or “use an office intercommunication system” (Malone v Metropolitan
Police Commissioner)
-Certainly did not extend to authorised telephone taps by the police
•Airspace:
-Unjust comparison between Bernstein and US law where aerial surveillance can constitute
trade secret violation
Document Summary
Secrecy as a matter of civil and criminal law: breach of con dence is from the equity" branch of common law. Equity ensures the common law does not produce harsh results. Breach of con dence is one of the doctrines that equity includes: in a commercial setting, breach of con dence is referred to as trade secret law". Socio-economic factors enlivening the need for con dentiality (p. 199: 1960s: increasing complexity of industrial manufacturing process. Sub-contracting of tasks and the sharing of commercially valuable information to the individual contractors that perform these tasks: post-war: the ourishing of the small inventor" - who sold innovations to large enterprises. Contracts to negotiate contracts" - protecting inventors while discussing their creations with potential clients. Breach of con dence is a broad principle of equity that he who has received information in con dence shall not take unfair advantage of it .
