Duty of confidentiality may be ‘implied’

Confidentiality clauses and agreements are a common feature of commercial contracts and transactions but certain duties of confidentiality can arise without any express agreement.

Confidential information

Generally speaking, the law provides that where ‘confidential information’ is obtained in circumstances that indicate an obligation of confidentiality, any unauthorised use of the information may make the culprit liable to a claim for an injunction and/or damages.

The issue has been demonstrated in the recent case of Jacqueline Gold & Anne Summers v Allison Cox & Leanne Bingham.

Allison Cox, the former nanny of Jacqueline Gold, chief executive of Ann Summers, was convicted last year for attempting to poison Ms Gold. Leanne Bingham, a former Ann Summers employee and friend of Allison Cox, wishes to write a book based on her time working for Ann Summers and the events surrounding Ms Cox’s very public court case. The claimants applied for an injunction to stop publication of confidential information.

Ms Bingham’s view was that she was free to use certain material ‘because she was not legally bound by a confidentiality agreement’. The High Court disagreed, saying that confidentiality may be implied into a contract and may exist independently of any express agreement. They granted a privacy injunction restraining publication of the confidential material pending a further hearing.

Although this particular case is ongoing, the message is plain. Where businesses or employees want to use confidential knowledge, they should pause to consider the risks and potential liabilities, whether or not they are bound by a written agreement.

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