1. Arguments
   1. pro
      1. protect individual autonomy, personality, privacy
      2. promotes fair competition
2. Basis
   1. contract
   2. tort
   3. property
   4. equity
   5. sui generis
      1. pesonal privacy
         1. Art 8
3. Role
   1. commercial information
      1. alternative to patents
      2. can protect ideas which are not copyrightable yet
         1. not really?
      3. m.b. parallel protection to copyright
      4. protect potential patents before disclosure
      5. know-how
4. Types of information
   1. commercial
   2. personal
   3. government
5. Requirements
   1. Coco v Clark --- (C designed moped engine - negotiated with Clark - break down - Clark designed similar engine - obligation of confidence, but did not find use of confidential inf)
      1. information capable of being protected
         1. NOT protected
            1. trivial
            2. test
            3. 'unless the circumstances are of sufficient gravity
            4. not 'trivial tittle-tattle'
            5. no specific guidance
            6. types
            7. commercial
            8. private
            9. NOT trivial
            10. address although relatively trivial
            11. personal and sexual relationships, feelings after death of fiance, health, diet
            12. trivial
            13. innocuous, unimportant and unremarkable events
            14. e.g. trip to Italy
            15. governmental
            16. suggested that not apply
            17. because difficult for the courts to decide
            18. immoral
            19. grossly immoral
            20. vague
            21. test
            22. not 'wouldn't it be great if...' --- (Ministry of Sound: - open all night - large and fitted out in hi-tech industrial style - separate areas for drinking, dancing - dance area of high quality - top disc-jockeys all features individually to vague - also not novel (except all night)
            23. beyond simple goal - show 'considerable degree of particularity in a definitive product' --- (TV series about formation of female rock band - subsequent experience - ok - attractiveness and capable of realisation)
            24. factors
            25. level of specificity required in the industry in question --- (in theatre, TV and film industries - m.b. general ideas)
            26. e.g.
            27. mere idea of separating oil and water --- (e-ees left the company to work in this field)
            28. public domain
            29. test
            30. objective - C's desire will not matter
            31. factors
            32. type of inf
            33. personal are interesting to wider public
            34. trade secret is interesting only for competitors
            35. section of public who have interest in knowing inf
            36. degree of publication within that domain
            37. form in which inf is published
            38. vigour with which inf is likely to be pursues within that domain
            39. extent to which further publication will harm --- (no further damage)
            40. m.b. public even if to a small number of people --- (disgraceful conduct of pop-stars on aeroplane - public)
         2. issues
            1. C must identify confidential inf precisely --- (100 out of 246 drawings contain confidential inf - which ones?)
            2. m.b. still confidential if told to friends and relatives --- (showed engravings)
            3. confidentiality of photographs is not taken away by text
            4. publication in other country m.b. relevant --- (patent specification in Belgium)
            5. springboard doctrine cannot be in better position if takes inf from a private source --- (negotiations broke down - unconsciously used new carpet grip)
            6. arguments
            7. pro
            8. promotes integrity of confidential relations
            9. promotes relations between potential competitors
            10. issues
            11. restrictions do not last forever
            12. period is connected to the time which is necessary to discover inf in legitimate public sources
            13. m.b. available from public sources --- (took list of customers from E-er)
            14. encrypted inf
            15. (coin-receiving and -changing mechanisms in vending machines - discriminators which determined authenticity of coins - no confidence - anyone with the necessary skill could de-crypt)
            16. can public information be forgotten and become confidential?
            17. (PRIMODOS drug - for pregnancy test - damaged unborn - later - interview for documentary - ok - injunction)
            18. information already disclosed by confident
            19. cannot be restrained further
            20. BUT!
            21. all other remedies aside from injunction are ok
            22. information collected from public domain
            23. even if difficult to collect, must be some skill of the human brain - not purely automatic
            24. m.b. confidential --- (as managing director - company made swimming pools - learned about previous grant of a patent for similar swimming pool - told nothing - left company - established competing business - in breach - although public - because knew in capacity)
            25. obvious, non-novel inf
            26. m.b. not confidential --- (pretty obvious once one is setting out to create a beat-mix)
            27. personal information
            28. depends on reasonable expectation of privacy
            29. factors --- (Rawling's child)
            30. attributes of C
            31. child, adult?
            32. nature of the activity C is engaged
            33. recreation, public duties?
            34. place where C was
            35. nature and purpose of intrusion
            36. observer was aware of the absence of consent?
            37. effect on C
            38. how inf came into hands of publisher
            39. even if widely disclosed, m.b. retained its private character
            40. photo taken in public place
            41. confidential if include something embarrassing or offensive
            42. although in ECHR
            43. all photos are private
      2. D owes an obligation of confidence
         1. legal obligation
            1. from
            2. express obligation
            3. the nature of relationship
            4. fiduciary relationship
            5. manner of communication
            6. test
            7. would a reasonable recipient have realized that inf given to them in confidence?
            8. express statement
            9. inferred
            10. sources
            11. commonly held views and practices in industry
            12. normal conversation
            13. not if in informal social setting
            14. disclosed for a limited purpose
            15. obligation that only for that purpose
            16. BUT!
            17. m.b. that reasonable recipient might not assume confidence
            18. encrypted material
            19. depends on whether a reasonable recipient would consider that encryption means that confident
            20. BUT!
            21. different from C merely did not want for D to have access held no confidentiality
            22. BUT!
            23. at odds --- (stole a branch with genetic inf from the protected orchard - held confidence)
            24. 3rd party recipient
            25. indirect recipient who is aware of confidential status - bound
            26. grossly negligent in not knowing that confidential - bound
            27. BUT!
            28. ok if careless, naive, stupid or merely knew of an assertion that confidential
            29. does not know, but discovers later - bound from that time --- (papers mistakenly sent to solicitors from other side)
            30. strangers
            31. C acted illegally - police is ok - no obligation for tapping
            32. BUT!
            33. private investigator - owes - cannot illegally acquire
            34. m.b. illegality is more relevant to possibility of injunction
            35. D owes if anything reasonably leads the observer to realize that what he observes is confidential --- (Frankenstein film - Robert de Niro - photo - photographer not invited - 'Absolutely No Photography')
            36. more important than illegality! --- (paid 1m for confidentiality)
            37. personal information
            38. if reasonable expectations
            39. employment
            40. during the course of employment
            41. express
            42. implied
            43. implied duty of fidelity
            44. after employment
            45. express
            46. see if restraint of trade
            47. personal skill, knowledge, experience should be free
            48. implied
            49. Only trade secrets are protected --- (E-ee - sold fresh chicken from vans - inf about customers, prices, products)
            50. types
            51. trade secrets
            52. protected during and after
            53. commercially sensitive inf
            54. protected during employment
            55. e.g.
            56. customers' names and addresses
            57. most convenient routes to reach customers
            58. customers' usual quality and quantity requirements
            59. the days of the week Faccenda called on customers
            60. prices charged to individual customers
            61. e-ee's general skill and knowledge
            62. factors
            63. nature of employment
            64. see if inner counsel of E-er
            65. nature of information
            66. not general business methods and practices
            67. must be defined with precision
            68. whether E-er impressed on E-ee the confidentiality of information
            69. in small business m.b. even if E-er failed to identify
            70. whether inf can be easily isolated from other inf
            71. whether real or significant harm from disclosure
            72. e.g.
            73. chemical formulae
            74. secret manufacturing process
            75. design and special methods of construction
            76. m.b. injunction, but not damages against BF purchaser
            77. the way the parties understand their moral obligations
            78. subjective unspoken views m.b. relevant --- (demonstration of a car-lock device)
      3. duty breached
         1. derivation
            1. ways
            2. direct evidence
            3. indirect
            4. 'significant fingerprint'
            5. persuade the court that D could not have got to this position from legitimate sources
         2. issues
            1. D's state of mind is not relevant
            2. harm is needed?
            3. only in government secrets
            4. the Crown must demonstrate public interest in restraint
            5. personal inf
            6. not needed
            7. more relevant to remedy
            8. small compensation where no harm --- (small to celebrities, but large sum for the journal)
            9. partial use
            10. must have used substantially the same idea --- (copied 2 of 5 features - not enough)
            11. alteration of confidential inf
            12. a matter of degree whether the extent and importance of the use of conf inf is such that continued use of the derived matter should be viewed as use of conf inf
      4. Defences
         1. consent or authorisation
         2. public interest
            1. nature of inf
            2. 'not merely interesting to the public'
            3. types
            4. defence
            5. affects moral, political, medical, or material welfare
            6. m.b. allowed to set the record straight
            7. BUT!
            8. failed in the case because photo - too much
            9. NO defence
            10. entertainment, curiosity or amusement
            11. factors
            12. consequences of non-disclosure
            13. internal papers - alcohol-measuring machine faulty
            14. type of obligation
            15. difficult if express duty
            16. beliefs of the confidant
            17. ok, if believed that iniquity, but not just to check
            18. the party to whom inf is disclosed
            19. newspapers should not confuse their own interest with public
            20. tell the club or the police, not the newspapers --- (Francome breached Jockey Club regulations, possibly criminal offences)
            21. how inf acquired
            22. whether received enumeration
            23. extent to which inf is already in public
      5. remedy
         1. damages
            1. market value of inf - only one factor
         2. account of profits
         3. injunction
6. Privacy
   1. Naomi Campbell v MGN
   2. Douglas v Hello! Ld Hoffman - follow the money - enough for a breach of confidential information - huge commercial money --- (wedding photos - did not matter if sold right to another magazine)
   3. [Kaye v Robertson] --- (photos taken in the hospital)
   4. [Von Hannover v Germany] misuse of personal information --- (ECHR - little privacy for a princess, but some must be)