Gurry on Breach of Confidence The Protection of Confidential Information

by Aplin, Tanya; Bently, Lionel; Johnson, Phillip; Malynicz, Simon

• ISBN13: 9780199297665
• ISBN10: 0199297665
• Edition: 2nd
• Format: Hardcover
• Copyright: 2012-05-23
• Publisher: Oxford University Press

Summary

Francis Gurry's renowned work, Breach of Confidence , published in 1984, was groundbreaking and invaluable in the field of intellectual property as the first text to synthesise the then burgeoning case law on breach of confidence into a systematic form. A highly regarded book, it was the first point of resort for practitioners and a key source for judges. Aplin, Bently and Malynicz bring us a new edition of this important work, which remains faithful to the original in its approach, but is fully updated in light of the developments since the first edition. The authors expand upon the original work, in particular adding new material on the history and current relevance of the action for breach of confidence. The authors stress both the advantages and disadvantages of the action for breach of confidence and, like Gurry, they constantly distinguish the action from associated legislative regimes which regulate the access to, acquisition, use and disclosure of information. The book extensively references the many analyses of the data protection regime and considers also issues of jurisdiction and choice of applicable law. Bringing together their particular skills and interests, the three authors produce a fresh re-writing of a highly significant text which retains the academic quality and precision of the original and stakes its claim once more as the leading authority in the field.

Author Biography

Dr Tanya Aplin is a Reader in Intellectual Property Law at King's College, London. She was previously a Lecturer in Law at Robinson College, Cambridge (2000-2002), and a Research Fellow at Murdoch University (1997-1999). Dr Aplin is a visiting lecturer on law programmes offered by the IP Academy Singapore, National University of Singapore, Pepperdine University and Loyola Law School, Los Angeles. She is also Director of the King's Postgraduate Diploma/MA in UK, EC and US Copyright Law. She has written widely in the field of intellectual property law, including privacy. Professor Lionel Bently is Hershel Smith Professor of Intellectual Property Law and Director of the Centre for Intellectual Property and Information Law at the University of Cambridge. He is the author of a leading textbook on Intellectual Property, Intellectual Property Law (2nd ed. Oxford: OUP, 2004) Simon Malynicz is a barrister at Hogarth Chambers, New Square, Lincoln's Inn, specializing in intellectual property law. He has experience of litigating breach of confidence actions in the UK. He has contributed to a number of works including, Intellectual Property in Europe (Sweet & Maxwell), The Community Trade Marks Handbook (Sweet & Maxwell) and The Community Designs Handbook (Sweet & Maxwell). He is also a joint author of the second edition of The Modern Law of Trade Marks (Butterworths).

Table of Contents

PART ONE: INTRODUCTION
I. The Legal Notion of Confidence
A. The Elements of Enforceable Confidence
B. The Functions Served by the Enforcement of Confidence
C. The Historical Development of the Action
D. Confidence and Its Relation to Other Systems of Regulation of Information
E. The Impact of the Human Rights Act
F. The Enduring Importance of the Action
PART TWO: THE JURISDICTIONAL BASIS OF THE ACTION
II. Specific Jurisdictional Sources
A. Introduction
B. Contract
C. Equity
D. Property
E. The Relevance of Tort
III. Sui Generis Action
PART THREE: CONFIDENTIAL INFORMATION
IV. The Attributes of Confidentiality
A. The Requirements of Confidentiality
B. Information, Expression, Ideas and their Embodiments (formerly Mode of Expression)
C. Characteristics of Confidentiality
D. Information Lacking Confidentiality (formerly Compulsory Disclosure Under Statute)
V. Categories of Confidential Information
A. Trade Secrets
B. Personal Confidences
C. Artistic and Literary Confidences
D. Government Secrets
PART FOUR: THE OBLIGATION OF CONFIDENCE
VI. General Principles
A. The Limited Purpose Test
B. Subjective or Objective?
C. Obviously Confidential Documents
D. Privacy Cases
E. Surreptitious Acquisition of Confidential Information - The Problem of Espionage (formerly in Part VII)
F. Third Party Recipients
VII. Common Classes of Obligation
A. Business Obligation
B. Professional Obligations
C. Fiduciaries
D. Litigation
E. Obligations Arising from Disclosure Under Statute
VIII. The Employee's Obligations During His Employment
A. The Express Obligation of Confidence
B. The Implied Obligations
C. Limits to Express and Implied Obligations
D. Enforcement: Specific Issues Relating to Employees
IX. The Post-Employment Obligations of the Employee
A. Express Obligations
B. The Restraint of Trade Doctrines
C. Implied Obligations
D. Enforcement: Specific Issues Relating to Employees
X. Obligation Arising From Disclosure of Information Held by the State or Its agencies
A. Breach of Confidence
B. Statutory Prohibitions on Disclosure of Information Held by the State
C. Access to Information Held by the State
D. The European State and its Agencies
PART FIVE: DURATION AND BREACH OF OBLIGATION
XI. The Duration of the Obligation of Confidence
A. Release by Express or Implied Consent
B. The Mental Element in Breach
C. Partial Uses
D. Transformative Uses
E. Breach by Employees and ex-employees (formerly in Chapter XIII)
PART SIX: DEFENCES
XIII. The Public Interest
A. The Defence of the Just Cause or Excuse
B. The Public Interest, Confidences and Litigation
C. The Legitimate Interest and Art 10 of the ECHR
XIV. Miscellaneous Defences
A. Unclean Hands
B. Delay
C. Disclosure Under Compulsion of Law
D. Disclosures Permitted Under Statute
PART SEVEN: REMEDIES
XV. The Available Remedies
XVI. Anton Piller Orders
XVII. Interlocutory Orders
A. The Standard of Proof
B. The Balance of Convenience
C. Section 12 of the Human Rights Act
D. The effect of the Civil Procedure rules
XVIII. Final Injunction
A. The Nature of the Information
B. The Publication Which The Information has received
C. Extent of Use
D. Good Faith and Change of Position
E. Detriment
F. Certainty in the Terms of the Injunction
G. Conclusion
XIX. Orders for Delivery Up or destruction
XX. Disgorgement Remedies (formerly Account of Profits)
A. Circumstances in Which an Account is available
B. Calculating the Profit
C. Constructive Trusts
XXI. Compensatory Remedies (formerly Damages)
A. Circumstances in Which Damages Will be Awarded
B. The Measure of Damages
XXII. Criminal Aspects
PART EIGHT: PROCEDURAL CONSIDERATIONS
XXIII. Procedures for Preserving Secrecy During Litigation
A. The Extent of Disclosure Required
B. Procedural Safeguards for Protecting Confidentiality
PART NINE: International Aspects
XXIV. Breach of Confidence in Public International Law Instruments
A. Paris Convention
B. TRIPs
XXV. Breach of Confidence in Private International Law
A. Jurisdiction and Enforcement of Judgements
B. Choice of Law
APPENDIX I: STATUTORY PROVISIONS CREATING OFFENCES FOR THE MISUSE OF INFORMATION DISCLOSED PURSUANT TO LITIGATION
APPENDIX II STATUTORY OBLIGATIONS OF CONFIDENCE