Page 140 - Law and the Media

Breach of Confidence
The provisions of the Human Rights Act 1998 are mandatory. They will force the courts to
approach the issue of interim injunctions in a different way, by balancing the right to privacy
with the right freedom of expression.

6.4.3 Differences between breach of confidence and defamation

There are three significant differences between an action for breach of confidence and an
action for defamation:

1. The truth of the information being published is irrelevant. It is not open to a defendant in
a breach of confidence action to argue that it intends to justify the publication. The court
may grant an interim injunction regardless of the truth of the information, as long as the
elements necessary for a breach of confidence action are made out.
2. Historically, the courts have been more willing to grant injunctions to restrain breaches of
confidence rather than to prevent damage to a person’s reputation. Once a secret has been
published, it cannot be made confidential again. By contrast, damages are regarded as an
adequate remedy for an injured reputation.
3. Any damages for breach of confidence will be decided by a judge rather than a jury.

6.4.4 Other remedies

The claimant is usually more interested in an injunction than any other remedy. However, the
other available remedies are:

Damages. Damages are not normally applicable to most media cases because no
amount of money can compensate for the revelation to the public of confidential
matters. However, in breach of confidence actions concerning trade secrets or
business information the claimant may recover damages for the market value of the
information. There are no useful guidelines to assess the likely awards for loss of
non-commercial confidences.
Account of profits. An account of profits is most relevant to book publishers. The
claimant can recover all profits generated by the defendant by use of the claimant’s
secrets. A publisher could forfeit all profits from the sale of a book as a result. In
circumstances where a newspaper contains one story in breach of confidence or a
television company broadcasts one offending story, the difficulties of apportioning
part of the profits to the breach of confidence will be considerable.
Delivery up. The court can order that the defendant return to the claimant all the
claimant’s confidential documents. Any defendant who is ordered to hand back
material should bear in mind Section 10 of the Contempt of Court Act 1981, which
protects the identity of sources (see Chapter 11).

103