1. In its report Breach of Confidence
the English Law Commission considered the role of the duty of confidence
in protecting improperly obtained information. The Commission noted that
"it is a glaring inadequacy of the present law that ... the confidentiality
of information improperly obtained, rather than confidentially entrusted
by one person to another, may be unprotected." The Commission recommended
that this situation be redressed by treating
information as being impressed by a duty of confidence. The Commission
identified the following situations as ones where it is reasonable to impose
"(i) A person should owe an obligation of confidence in respect of
information acquired in the following circumstances:
(a) by unauthorised taking, handling or interfering with anything containing the information;
(b) by unauthorised taking, handling or interfering with anything in which the matter containing the information is for the time being kept;
(c) by unauthorised use or interference with a computer or similar device in which data is stored;
(d) by violence, menace or deception;
(e) while he is in a place where he has no authority to be;
(f) by a device made or adapted solely or primarily for the purpose of surreptitious surveillance where the user would not without the use of the device have obtained the information;
(g) by any other device (excluding ordinary spectacles and hearing aids) where he would not without using it have obtained the information, provided that the person from whom the information is obtained was not or ought not reasonably to have been aware of the use
(h) of the device and ought not reasonably to have taken precautions
to prevent the information being so acquired.
(ii) An obligation of confidence shall be imposed on a person who
jointly participates in the acquisition of information if, though he did
not use any of the improper means listed in paragraph (i) above, he personally
acquired the information and he is, or ought to be, aware that the information
was acquired by the use of any such improper means by his fellow participator.
(iii) An obligation of confidence should not arise in accordance
with paragraph (i) above where the information has been obtained by a person
in the course of the lawful exercise of an official function in regard
to the security of the State or the prevention, investigation or prosecution
of crime or by a person acting in pursuance of any statutory provision
so far as the information has been disclosed or used for those purposes
or for any purpose expressly or impliedly authorised by a statutory provision."
2. The Law Commission explains that it would be beyond its terms of
reference to deem unlawful the use of any surreptitious surveillance device,
and such a measure would be additional.
3. Items (f) and (g) are most directly relevant to our terms of reference.
The distinction is made between devices primarily designed for surveillance
purposes, and those lacking that specific purpose but which may nonetheless
be so used e.g. binoculars or tape recorders. In both cases, the Commission
recommends that the duty of confidence apply, provided that the information
would not have been acquired without the use of such a device. However,
the recommendation accommodates the fact that only in the former situation
should it be assumed that the person from whom the information is obtained
is not aware of the device's use. Professor Wacks has identified a difficulty
of the clause is that it is potentially restrictive:
"by prescribing a catalogue of specific forms of conduct there is
a danger, especially in an area which is constantly undergoing technological
change, of new methods of intrusion developing which call for legislative
adaptation. A preferable analysis (suggested by the Scottish Law Commission)
is to refer in a general manner to the acquisition by illegal means or
by means which would be regarded as improper by a reasonable man."
4. Whichever formulation is adopted, also relevant is the public interest
defence in breach of confidence cases. Under the Law Commission's proposals:
"It should be for the defendant to satisfy the court that there was a public
interest involved in the relevant disclosure or use of the information."
5. On 12 March 1985 the Home Secretary announced the Government's intention
"The Commission recommends that people who obtain information by
`improper means' - which includes the use of surveillance devices, as the
Hon Gentleman knows - would be subject to an obligation not to use or disclose
information. If they did so, they would be civilly liable to an action
for breach of confidence. That approach has, I believe, the considerable
advantage of concentrating on the real mischief -that is, the use to which
information obtained is put. It provides the victim with a direct means
of redress. I am able to announce today that the Government intends to
introduce legislation based on the Law Commission's proposals. This will
offer people an important and wholly new safeguard in an area of legitimate
6. By 1990 legislation had still not been introduced and the Calcutt
Committee declined to generally endorse the Commission's proposals, without
adverting to this specific recommendation. That Committee's terms of reference
were limited to "activities of the press". But other commentators have
continued to urge the adoption of the draft clause quoted above. James
Michael reviewed the disparate recommendations of the Younger Committee
(1972), Law Commission, and the Calcutt Committee. The Younger Committee
(whose terms of reference were restricted to the private sector) included
a recommendation that it be a civil wrong "to disclose or otherwise use
information which the discloser knows, or in all the circumstances ought
to have known, was obtained by illegal means. " James Michael concluded
that: "of the three proposals, the Law Commission's draft bill was the
most carefully thought out [it represented 8 years of work] and the Government
should not need a nudge from Sir David Calcutt to carry out the undertaking
given by Leon Brittan when he was Home Secretary to legislate on the basis
7. Similarly, Patrick Milmo wondered:
"why the current demand for legislation to counter press intrusion
on privacy cannot be met by [the Law Commission's draft] Bill rather than
the vaguely formulated and controversial new law of privacy proposed by
the Lord Chancellor."
Recent developments in the law of confidence
8. The difficult question is whether, a third party, C, who intercepts
a communication between A and B is liable to either A or B for breach of
confidence. Where confidential information is acquired by the use of `reprehensible
means' (electronic surveillance, spying, and other forms of intrusive conduct),
the authorities suggest the third party is not liable when he uses it.
The apparent explanation for this `glaring inadequacy'
(which means that if confidential information is obtained by improper means,
it receives less protection by the law than if it were confided to a party
who was under an obligation not to use or disclose it) is the absence of
a relationship of confidence between the party who wishes to keep the information
confidential, on the one hand, and another party, on the other.
9. But this may be a difficult position to defend. Thus, it has been
that in these circumstances the defendant, since he knew that the information
was confidential (why else would he be surreptitiously obtaining it?),
is under an imputed duty no different from that which applies to the ordinary
recipient of confidential information.
10. Some breach of confidence cases lend support to the view that protection
is not confined to consensual disclosures of confidential information.
Lord Ashburton v Pape,624 the Court of Appeal, in
a decision which involved a breach of confidence by a solicitor's clerk,
referred to its power to enjoin the publication of information `improperly
or surreptitiously obtained'. More significantly, the Supreme Court of
Queensland, in Franklin v Giddens
allowed an action for breach of confidence where the defendant had, in
the absence of any confidential relationship, stolen genetic information
in the form of cuttings from the plaintiff's unique strain of cross-bred
nectarines. Dunn J said:
"I find myself quite unable to accept that a thief who steals a trade
secret, with the intention of using it in commercial competition with its
owner, to the detriment of the latter, and so uses it, is less unconscionable
than a traitorous servant."
11. A persuasive case in support of the contention that the eavesdropper
may be caught by the action for breach of confidence is the important decision
Francome v Mirror Group Newspapers Ltd
where the Court of Appeal granted an injunction to restrain the defendants
from using information that had been obtained (by parties unknown) through
the use of radio-telephony. The case conflicts with the judgment in Malone
v Commissioner of Police of the Metropolis (No 2)
in which Sir Robert Megarry VC declined to make a declaration that telephone-tapping
by the police was a breach of the victim's right of confidentiality in
the conversations. In his view, an individual who divulges confidential
information cannot complain when someone within earshot overhears his conversation.
In the case of telephone conversations:
"The speaker is taking such risks of being overheard as are inherent
in the system ... In addition so much publicity in recent years has been
given to instances (real or fictional) of the deliberate tapping of telephones
that it is difficult to envisage telephone users who are genuinely unaware
of this possibility. No doubt a person who uses a telephone to give confidential
information to another may do so in such a way as to impose an obligation
of confidence on that other : but I do not see how it could be said that
any such obligation is imposed on those who overhear the conversation,
whether by means of tapping or otherwise."
12. He was in no doubt that `a person who utters confidential information
must accept the risk of any unknown over-hearing that is inherent in the
circumstances of the communication'.
Relying on this dictum, the defendants in Francome
argued that the
plaintiffs had no cause of action against them or the eavesdroppers for
breach of an obligation of confidence. The Court of Appeal rejected this
contention on the ground that in Malone the court was expressly
concerned only with telephone-tapping effected by the police for the prevention,
detection and discovery of crime and criminals. Fox LJ distinguished the
two forms of intrusion in the following terms:
"Illegal tapping by private persons is quite another matter since
it must be questionable whether the user of a telephone can be regarded
as accepting the risk of that in the same way as, for example, he accepts
the risk that his conversations may be overheard in consequence of the
accidents and imperfections of the telephone system itself."
13. In other words a telephone user's `reasonable expectation of privacy'
may be vindicated when the eavesdropper turns out to be a private individual,
but not when it is the police acting under lawful authority. And it has
been suggested that this judgment suffers from a `fundamental misconception':
"That because equity acts in personam it responds to some personal
dealing between the parties so that the eavesdropper is in a quite different
case to the confidant. But what the maxim indicates is that equity responds
to unconscionable conduct by the defendant; this may but need not flow
from any consensual dealing with the plaintiff. Accordingly, it requires
no great effort, no straining of principle to restrain the activities of
14. The absence of a relationship between the parties has not inhibited
the Hong Kong courts from imposing liability for breach of confidence.
In Koo and Chiu v Lam,633 the Hong Kong Court of Appeal
recently held that a medical researcher was under a duty of confidence
in respect of a questionnaire that had been prepared by a `rival' research
team and which, by the appellant's admission, he had used formulating his
own questionnaire. It is unfortunate that there is no clear evidence as
to how the appellant obtained access to the respondents' questionnaire.
Penlington JA, commenting upon the trial judge's finding that the appellant
had obtained the information `surreptitiously', remarked:
"He did somehow come into possession of the document, and he must
have known it was confidential because of the amount of work which had
gone into its preparation. It had not been given to him by the persons
whose information it was and again he must have realised he was not entitled
to use it."634
15. This dictum takes the law considerably further than both Franklin
and Francome for in those decisions the `surreptitious taker' acted
contrary to law (theft and an offence contrary to the UK Wireless Telegraphy
Act 1949, respectively). In Koo, Penlington JA emphasised that the
finding of `surreptitious obtaining' did not extend as far as theft which,
he said `cannot be supported by the evidence'.
But if surreptitious taking extends to the mere fact that the appellant
`did somehow come into possession' of the questionnaire with the knowledge
that it was confidential, the Hong Kong Court of Appeal appears (by accident
or design) to have grasped the nettle and embraced the notion of receipt-based
liability, albeit under cover of surreptitiousness rather than unconscionability.
16. Some caution is, however, required. First, the actual finding, at
first instance, that the information was imparted in circumstances imposing
an obligation of confidence was not challenged upon appeal.
Secondly the rival teams of researchers worked at the same university which
implied a `course of dealing' between the parties during which the appellant
arguably became aware that the questionnaire was confidential. This could,
to some extent, approximate to a relationship of confidence on orthodox
17. The decision is plainly not one of a stranger stumbling across a
diary in the street. Nevertheless, assuming it is correct, the judgement
demonstrates the utility of the breach of confidence action where the strict
requirement of a prior relationship is relaxed. It does not, however, remove
all the obstacles in the path of the protection of `privacy', for the finding
that the appellant knew that the information contained in the questionnaire
was confidential was derived less from the nature of the information than
from his personal experience, and the limited relationship between the
18. Nevertheless, to catch the eavesdropper, the Younger Committee considered
"We think that the damaging disclosure or other damaging use of information
acquired by any unlawful act, with knowledge of how it was acquired, is
an objectionable practice against which the law should afford protection.
We recommend therefore that it should be a civil wrong, actionable at the
suit of anyone who has suffered damage thereby, to disclose or otherwise
use information which the discloser knows, or in all the circumstances
ought to have known, was obtained by illegal means. It would be necessary
to provide defences to cover situations where the disclosure of the information
was in the public interest or was made in privileged circumstances. We
envisage that the kinds of remedy available for this civil wrong would
be similar to those appropriate to an action for breach of confidence."
19. One difficulty with this approach is that the Younger Committee
rejected the introduction of an action for unwanted publicity; the only
remedies considered necessary in cases of `public disclosure' were the
action for breach of confidence and this one which will only assist the
plaintiff where the information was acquired unlawfully. This means
that where, say, a journalist obtains personal information lawfully,
the plaintiff will have no remedy. But should unlawful means be employed,
an action may lie, subject to the proposed defence of 'public interest'.
In other words, in the view of the Younger Committee, the only circumstances
under which a civil action would lie where there has been disclosure of
personal information are where the means used to obtain the information
were unlawful. And this confuses the interests in issue in `intrusion'
with those that arise in `disclosure'. Since the availability of remedy
is, prima facie, made dependent upon the use of illegal means, the question
of whether there has been an intrusion becomes a crucial criterion in determining
whether the plaintiff has a remedy at all. This factor ought not
to be of primary importance in cases of disclosure. Equally, unlawful means
ought not to be permitted merely because the eventual disclosure is justified.
The two questions should be kept separate.
20. The Law Commission recognise that there is an important distinction
between the imposition of an obligation of confidence in the normal case,
and in the case of improper acquisition, when they state:
"There is undoubtedly a considerable difference in nature between
on the one hand the obligation imposed on a person for breaking an undertaking
to another to keep information confidential and, on the other, an obligation
imposed on a person as a result of his having used improper means to gain
information which may, indeed, be so secret that the plaintiff has never
entrusted it to anyone, not even in confidence. Nevertheless, we believe
that it is possible to encompass both forms of behaviour within the framework
of our new statutory tort."
21. They conclude that the common feature in both cases is that the
receiver of information is in a position where it is reasonable to
impose a duty of confidence upon him. They therefore propose a number of
in which the acquirer of information should, by virtue of the manner in
which he has acquired it, be treated as being subject to an obligation
of confidence in respect of such information acquired in the following
(a) by unauthorized taking, handling, or interfering with anything containing the information;
(b) by unauthorized taking, handling, or interfering with anything in which the matter containing the information is for the time being kept;
(c) by unauthorized use of or interference with a computer or similar device in which data are stored;
(d) by violence, menace, or deception;
(e) while he is in a place where has no authority to be;
(f) by a device made or adapted solely or primarily for the purpose of surreptitious surveillance where the user would not without its use have obtained the information;
(g) by any other device (excluding spectacles and hearing aids)
where he would not, without using it, have obtained the information, provided
that the person from whom the information is obtained was not or ought
not reasonably to have been aware of the use of the device and ought not
reasonably to have taken precautions to prevent the information being so
22. This approach is potentially restrictive: by prescribing a catalogue
of specific forms of conduct there is a danger, especially in an area which
is constantly undergoing technological change, of new methods of intrusion
developing which call for legislative adaptation. A preferable analysis
(suggested by the Scottish Law Commission)
is to refer in a general manner to the acquisition by illegal means or
by means which would be regarded as improper by a reasonable person. This
has the advantage of anticipating advances in electronic surveillance technology.
The English Law Commission would impose automatic liability `without qualification'
for the use of confidential information upon a person who obtains such
information with the assistance of a device which is `clearly designed
or adapted solely or primarily for the surreptitious surveillance of persons,
their activities, communications or property'.
23. They draw a distinction between such devices and those, such as
binoculars or tape recorders, which are not in themselves designed primarily
for that purpose, although they are capable of being so used. In the case
of the latter, liability for the subsequent use or disclosure of the information
should arise only if the subject was not or ought not reasonably to have
been aware of the use of the device and failed to take precautions to prevent
This would seem to be a sensible distinction.
24. The Scottish Law Commission would impose an automatic obligation
on a person not to use or disclose any information so acquired `however
trivial it may seem to an outsider'.
The obligation is therefore not dependent on the nature of the information
acquired; it is not restricted (though, in practice, will normally
relate) to confidential information. While consistent with the general
concern to prevent intrusive activities (and not merely their consequences),
this proposal again demonstrates the different objectives of the control
of intrusion, on the one hand, and the protection against the misuse
of personal information, on the other. The former extends beyond (but may
accommodate) the present concern with confidential information and, a
fortiori, personal information, and is, of course, in any event, more
satisfactorily dealt with by the criminal law or by administrative control.
25. No obligation of confidence should be imposed upon a `surreptitious taker' by virtue only that he used illicit means to obtain the information. Liability should always rest upon general principles of unconscionability; the fact that improper means were necessary to acquire the information is persuasive in deciding whether the defendant had constructive knowledge, but is not an inexorable rule of law.
26. To what extent, if at all, is the fact of intrusion punished by the action for breach of confidence? As in the American jurisprudence, the English case law suggests a tendency to confuse intrusion and disclosure. In Malone, the plaintiff's telephone had been tapped by the Post Office under a warrant signed by the Secretary of State; Malone being under suspicion of handling stolen goods. In the course of his judgment, Sir Robert Megarry VC, having adverted to Lord Denning's `just cause or excuse' formulation for the public interest defence, remarks that `the question is ... whether there is just cause or excuse for the tapping and for the use made of the material obtained by the tapping'. This is to confuse the two issues.
27. In Francome, the Court of Appeal upheld the granting of an
interlocutory injunction to prevent the defendants from disclosing information
concerning the jockey Peter Francome which had been obtained by telephone
tapping. An important distinction between this decision and Malone
is that in the latter the defendant was both the intruder and the potential
discloser, whilst in Francome the intruders were not a party to
the proceedings. Thus, maintaining the rigid and logical distinction suggested
above, the only pertinent question here is whether the Daily Mirror
received the information subject to an obligation not to disclose it to
others. Again, the fact of the tapping does figure in this assessment,
but only in so far as it might determine what reasonably constitutes unconscionable
28. The analysis of Sir John Donaldson MR is in this respect correct. That he realised that intrusion was not in issue is clear from his comment that the question at trial `is likely to be whether the defendants can make any, and if so what, use of the fruits of [the illegal tapping]'.
Reforming the law
29. In its Report on Breach of Confidence, the Law Commission
advocated the creation of a statutory tort of breach of confidence. Having
concluded that, under the existing principles of the equitable action for
breach of confidence,
the plaintiff has no protection where information is surreptitiously taken
from him (as opposed to his having imparted it to another in circumstances
imposing an obligation of confidentiality),
the Commission proposed that if information were so acquired, the `surreptitious
taker' and any person obtaining the information from him, with knowledge,
was under an obligation of confidence by virtue solely of that surreptitious
30. This approach conflates disclosure and intrusion; the fact of intrusion
is the basis upon which disclosure is to be prevented or compensated. And
the Law Commission propose no separate sanctions against intrusion itself.
In clause 14(1)(b) of their draft bill, the Commission define recoverable
damages to include those in respect of `any mental distress, and any mental
or physical harm resulting from such distress' in consequence of the defendant's
breach of confidence. This explicit restriction of those damages to distress
suffered in `consequence of the breach'
suggests that, along with the narrowness of the Commission's terms of reference
mentioned above, it is highly unlikely that the Commission envisaged an
enhancement of these damages by virtue of additional distress caused by
The Law Commission Report proposed no sanction for the act of intrusion
per se, preferring, as is logically consistent with its terms of reference,
to use the intrusion as a springboard from which to attach an obligation
of confidence to prevent or compensate disclosure.
31. In its report, the Calcutt Committee recommended that three forms
of physical intrusion should be criminal offences, namely:
(a) Entering private property, without the consent of the lawful occupant, with intent to obtain personal information with a view to its publication;
(b) Placing a surveillance device on private property, without the consent of the lawful occupant, with intent to obtain personal information with a view to its publication;
(c) Taking a photograph, or recording the voice, of an individual
who is on private property, without his consent, with a view to its publication
with intent that the individual shall be identifiable.
It proposed a public interest type defence to these offences.
32. Just as the Law Commission concentrates exclusively on disclosure, so the Calcutt Committee directs its legislative recommendations at intrusion, leaving disclosure to the regulation of a newly formed Press Complaints Commission. The prospect of confusion between the two issues is thus obviated.
33. The National Heritage Committee recommend the introduction of a Protection of Privacy Bill, one part of which concerns what the Committee call `the main civil offence', namely infringement of privacy and it is clear from the definition of that offence that liability attaches to both `obtaining and/or publishing' personal information. Here, however, intrusion and disclosure are entirely separated, each, independently, giving rise to a cause of action. But, again, it is to be regretted that a public interest defence is proposed to apply both to acts of publication and to the obtaining of the personal information. The bill includes provisions along the lines of the Calcutt Report for the introduction of criminal sanctions against certain intrusive techniques.
 Law Commission Report No. 110 (Cmnd 8388)
 The Law Commission No 110, at para 6.46.
 R Wacks, Personal Information, at p 263.
 Quoted by James Michael in New Law Journal, May 4 1990 p 635.
 Solicitor Journal, 31 July 1992 p 744.
 New Law Journal, November 19 1993 p 1647.
 Law Commission Report (note 1 above), paras 5.5 and 6.28. See generally R Wacks, Privacy and Press Freedom (London: Blackstone Press, 1995), Chapters 3 and 5.
 G Jones, `Restitution of Benefits Obtained in Breach of Another's Confidence' (1970) 86 LQR 463.
624  2 Ch 469, 475; approved in Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39, 50.
  1 Qd R 72.
 Above, 80.
  1 WLR 892.
  2 All ER 620.
 Above, 376.
 Above, 376.
  1 WLR 892, 900.
 Meagher et al , p 827.
633 Civil Transcript No 116 (1992).
634 Above, 30.
 Above, 29.
 One is bound to ask `why not?' The decision of the trial judge represents a significant divergence from existing authority.
 Younger Report, para 632.
 Law Commission Report, para 6.30.
 Above, para 6.46.
 Scottish Law Commission, Breach of Confidence (Scot Law Com No 90, 1984), paras 4.36-41.
 Law Commission Report, para 6.35.
 Above, para 6.38.
 Scottish Law Commission, para 4.38.
 See Fraser v Evans  1 QB 349, 362.
  Ch 345, 377.
  1 WLR 892, 895.
 See Saltman Engineering Co Ltd v Campbell Engineering Co Ltd  3 All ER 413.
 In Para 5.5 of the Report, the Law Commission states: `It is a glaring inadequacy of the present law that ... the confidentiality of information improperly obtained, rather than confidentially entrusted by one person to another, may be unprotected'. The reasoning by which the Commission reaches this conclusion is set out in paras 4.7-4.10.
 This proposal is embodied in clause 5 of the draft bill (ibid, Appendix A).
 Though this may be readily explained by reference to the terms of reference of the Commission's enquiry. The relevant term asks the Commission to : `consider and advise what remedies, if any, should be provided for persons ... who have suffered loss or damage in consequence of the disclosure or use of information unlawfully obtained and in what circumstances such remedies should be available'. (ibid, Para 1.1)
 Clause 14(1)(b) of the draft bill.
 This view is supported by para 6.106 of the Report where the Commission confine its analysis to `mental distress' suffered as a result of the breach of confidence.
 Calcutt Report, para 6.33.
 Above, para 6.35. The defences are : `(a) for the purpose of preventing, detecting or exposing the commission of any crime, or other seriously anti-social conduct; (b) for the protection of public health or safety; or (c) under any lawful authority'. This approach was again proposed by the Calcutt in his Review, with minor alterations (paras 7.1-7.26).
 Above, paras 15.1-15.31.
 Above, and see para 55.
 Above, para 52