Breach Of Confidence And Advertising

Question 1
How do breach of confidence action arise?

Answer 1
Breach of confidence actions arise where someone receives confidential material in circumstances imposing an obligation on them not to disclose that material without the permission of the person who imparted it, and they pass this material on. Therefore, confidential ideas for marketing campaigns can be protected.

Question 2
What needs to be proved in order for a breach of confidence action to succeed?

Answer 2
In order to prove breach of confidence it is necessary to show that (a) the information in question is inherently confidential, (b) that the information was imparted in circumstances in which it was clear that there was a duty of confidence, (c) there has been (or is likely to be) unauthorized use or disclosure of the information, and (d) the information has commercial value (not necessarily monetary).

Question 3
Can breach of confidence actions protect ideas?

Answer 3
Yes, provided they are sufficiently developed to have commercial value and so as long as they remain confidential.

Question 4
Is there anything an agency can do to reduce the risk of its ideas being ripped off?

Answer 4
Yes, there is. First of all, before any pitch, and agency should persuade its prospective client to sign a “confidentiality letter”. Secondly, all documents being used as part of a pitch should be marked clearly with wording such as “Private and Confidential – copyright and property of [name of agency] – not to be copied, given to third parties or used without [name of agency] prior written consent”. Thirdly, all employees and freelancers should be contractually obliged to maintain confidentiality in all agency information, marketing proposals etc.


Question 5
When is information confidential?

Answer 5
The information must be private and secret. The fact that a document is marked “confidential” does not mean that it is necessarily confidential and vice versa.

Question 6
Who can be sued for breach of confidence?

Answer 6
The person who receives the confidential information and abuses the confidence in some way may be sued as the “primary infringer”. In addition, anyone receiving information from a primary infringer has a duty to respect the confidence when he knows that the information is confidential. Even where someone obtains such information innocently, it may still possible to obtain an injection against them to prevent the information being used.

Question 7
What defences are available?

Answer 7
A breach of confidence action will not succeed where it can be shown that (a) the information was already in the public domain (such that it is no longer confidential), (b) authority has been given to publish the information, or (c) disclosure of the information was in public interest.

Question 8
What are the remedies where a breach of confidence is proved?

Answer 8
Provided none of the defences apply, the person whose confidence has been breached may obtain damages and an injunction to prevent disclosure of the information. An injunction will only succeed where there is still information to protect, in other words, if the information has net yet been disclosed (since it has been disclosed, it is no longer confidential).