Convergences and Development
European Intellectual Property Institutes Network series
Edited by Nari Lee, Guido Westkamp, Annette Kur and Ansgar Ohly
Chapter 8: Commercialising privacy and privatising the commercial: The difficulties arising from the protection of privacy via breach of confidence
The action for breach of confidenceis a malleable one that in the last decade, under the catalytic influence of the Human Rights Act 1998 (UK) ('HRA'), has been adapted by English courts to give effect to privacy interests. Courts have explicitly addressed the role of Article 8 of the European Convention on Human Rights ('ECHR') in their analysis of breach of confidence principles, leading to an increased degree of (informational) privacy protection. However, this apparently convenient vehicle for protecting privacy interests is not without its difficulties. First, allowing private or personal information to be commercialised and protected as a trade secret via breach of confidence means that protection is no longer anchored to a privacy justification and begins to resemble, or risks developing into, a publicity right. This is aptly illustrated by the Douglas v Hello! litigation. Second, the issue arises whether commercial organisations can claim privacy protection in relation to commercial information, instead of, or in addition to, trade secret protection. This chapter will examine both of these difficulties, using the Douglas v Hello! litigation as the context for doing so, and will argue that there are several complications that arise from entangling privacy interests with the protection of commercial secrets. The Douglas v Hello! litigation is viewed by some commentators as an example of commercialising privacy or the protection of publicity interests. Yet this was a case that, at least ostensibly, concerned privacy protection.
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