Breach of Confidence (Hansard, 23 October 1984)

§ Mr. Steve Norris (Oxford East)

I beg to move, That leave be given to bring in a Bill to impose obligations of confidence giving rise to liability in tort on persons acquiring information in certain circumstances and otherwise to amend the law of England and Wales as to civil liability for the disclosure or use of information; and for connected purposes. I apologise for the complexity of the long title, but I must ask the House to bear with me for a few moments more while I relate the equally complex background to the Bill.

In October 1981 the Law Commission reported in response to a request by the Lord Chancellor that had been made about eight years earlier in March 1973. The Lord Chancellor's request was that the Law Commission should, first, consider the law of England and Wales relating to the disclosure or use of information in breach of confidence and to advise what statutory provisions, if any, are required to clarify or improve it; and, secondly, to consider and advise what remedies, if any, should be provided in the law of England and Wales for persons who have suffered loss or damage in consequence of the disclosure or use of information unlawfully obtained, and in what circumstances such remedies should be available.

The Lord Chancellor was prompted to call for the report following the publication of a report by the Younger commission on privacy which had been published the previous year. That commission suggested that the present law of confidence was inadequate and that a new law should be propounded, the basis of which should be four straightforward principles. The first principle is that it should provide remedies against the disclosure or other use of information not already generally known by persons in possession of that information under an obligation of confidence. That is the straightforward case where I tell someone something in confidence and he breaks that confidence, thus giving me a right of action against him.

Secondly, the law should make available remedies not only against a person who was entrusted by another with information in confidence but against a third party to whom that person disclosed that information. That means that if an individual tells my confidence to the press or to a commercial competitor I should have a remedy not only against the individual who broke the confidence but against the third party.

Thirdly—this is extremely important—the law must protect the public interest in the disclosure of some sorts of information and the defendant's right of disclosure in some privileged situations by the provision of appropriate defences. That is essentially the defence of public interest about which I may say a word later.

Fourthly, the law must afford remedies whether by way of injunction, damages or claims for loss of profit that do justice to the reasonable claims of plaintiffs and defendants in differing cases.

The reason for the Law Commission's reference was that few people appreciate the inadequacy of the present law of confidence. It is entirely non-statutory and based on precedent. There is no such thing as a specific law of confidence. Ironically, one of the best known early actions for breach of confidence was that brought by Prince Albert in 1849 against a picture gallery owner, Mr. Strange, who apparently intended to distribute unauthorised copies of private etchings belonging to the royal couple, who were 572 clearly decidedly unamused by this early example of entrepreneurial free enterprise. They obtained the first injunction for breach of confidence. Be that as it may, in an area as important as this in terms of civil rights, the idea of a law based wholly on precedent is inadequate. Therefore, the Bill abolishes the present law and its existing remedies and provides the first certain basis for comprehensive personal protection.

I wonder whether it is also appreciated that, although the old law gave a general right of action against a person to whom one had disclosed a confidence, it failed to provide any reasonable action where the confidence was breached by the use of interception or surveillance, whether overt or surreptitious, by a third party. It is an incredible indictment of the present law that, although I can bring an action for breach of confidence against the person to whom I told it, I cannot bring such an action against someone who deliberately and improperly intercepts my communication. The Bill will provide an immediate and effective remedy to those whose confidence has been breached in those circumstances.

I may say in passing that I hope that, in this connection, the Government will take on board the legislation on surveillance and telephone tapping, not only in relation to the civil remedies covered by my Bill, but in relation to the creation of specific criminal offences for the improper or unauthorised interception of communications. Earlier this summer we had the decision of the European Court in the Malone case, which made it clear that the European Court at least considered our practices to be ineffective. This must surely now be a priority for the Government.

I must stress that the Bill is not intended to prevent a free press or the general public from acquiring information to which they clearly ought to have access. At present there is no clear distinction between what information should be private to an individual, particularly one in public life, and what should be general knowledge. My Bill lays down a clear defence of public interest in which a plaintiff's claim—for example, a plaintiff who sought an injunction to prevent a so-called breach of confidence — would fail unless he established that the public interest in preserving the confidentiality of the information outweighed the public interest in its disclosure or use. In my view, that is as it should be, and I believe that every responsible journalist and editor would agree. If as a byproduct of its enactment the Bill provides some protection against some of the worst excesses of invasion of privacy by the media that we have seen in the past three years, so much the better.

The Bill is not about protecting Governments. It is not a weapon to be used against civil servants or others. Indeed, the only occasion that I can recall when the Government used the civil law to try to obtain an injunction for breach of confidence was in the Crossman diaries case, when the Attorney-General applied for an injunction to prevent publication. On that occasion the Lord Chief Justice made it quite clear that the Attorney-General had not established a sufficient case of public interest to prevent disclosure.

The Bill actually offers a wider definition of public interest than is currently available to a defendant of an injunction to prevent disclosure. As I have said, it would be for the plaintiff to prove the public interest in confidentiality rather than the public interest in disclosure. 573 This is a civil rights measure, not a governmental protection measure, and I hope that that is clearly understood on both sides of the House.

I introduce the Bill because at a time when immensely sophisticated telecommunications and surveillance equipment is freely available to Governments and individuals the potential threat to the privacy of the ordinary citizen is horrifyingly real. Any Government who are concerned to protect the freedom of the individual, as I hope this Government are, would want to put this Bill at the very top of their legislative programme. The Law Commission's Bill has already been left on the shelf too long, and I very much hope that the Government, mindful, as I am sure they are, of their importance, will find time before too long for a measure which has outstanding merit and which it would be immensely dangerous for us all to ignore.