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The Law of Confidentiality: A Restatement

ISBN13: 9781841138114
Published: April 2008
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback
Price: £70.00

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The last twenty years have seen rapid development of the equitable action for breach of confidence. The Spycatcher saga of the late 1980s led to the restatement of the fundamental principles.

There was increasing concern about press intrusion, and the need to protect privacy rights guaranteed by Article 8 of the European Convention in the wake of the Human Rights Act 1998. Against that background, a number of high-profile cases—such as Campbell v MGN Ltd (2004)—explored how common law principles laid down in the nineteenth century might be adapted to twenty-first century conditions. How far will the law go in protecting privacy?

Meanwhile, in the “information age”, the law has had to grapple—for instance in Douglas v Hello! Ltd (2007)—with how best to protect the commercially valuable information and when it should assist those who wish to exploit it.

The result has been rapid development of the law in many diverse areas. The Law of Confidentiality: A Restatement goes behind the mass of cases to tease out the fundamental principles underlying the modern law.

It examines the important questions of substance: the circumstances in which information is protected by law, and how it responds to conflicting public interests. It also looks at the important practical questions of procedure and remedies. It aims to be useful to those looking for a guide to the main principles and controversies in the field, and also to the practising lawyer looking for a clear statement of the basic principles.

Privacy and Confidentiality
1. The Basic Principle 3
2. Reasonable Expectation of Confidentiality 7
3. False Information 15
4. Agreement 19
5. Notice 25
6. Misuse 33

Part II: Limiting Principles
7. Loss of Confidentiality 37
8. Trivial Information 43
9. Disclosure Required by Law 45
10. Disclosure with Consent 49
11. Public Interest: Basic Principle 53
12. Public Interest: Wrongdoing 61
13. Public Interest: Safety and Health 65
14. Public Interest: Administration of Justice 69
15. Public Interest: National Security 77
16. Restraint of Trade 79
17. Freedom of Expression 87
18. Protection of Legitimate Commercial Interests 97
19. Change of Position 101

Part III: Remedies and Procedure
20. Parties 109
21. Final Injunctions 117
22. Interim Injunctions 123
23. Financial Remedies 129
24. Assessment of Damages 131
25. Assessment of Profits 135
26. Limitation 139

Appendix A: Detriment 147
Appendix B: Information and Property 149
Appendix C: Confidence and Privacy 157
Index 163.