Social Origins and Modern Developments
Chapter 1: Introduction and Synopsis
Breach of confidence is often thought of as a doctrine of minor importance. However, that perception must be questioned in the light of recent developments which have seen it emerge as a significant component of the intellectual property, privacy and security laws of common law jurisdictions including Australia, New Zealand, Singapore, Malaysia and Hong Kong. The authors of the newly-published second edition of Francis Gurry’s classic text on breach of confidence point out that the legal concept of confidentiality is, if anything, likely to increase in importance in the future, playing a critical role ‘in determining the boundary between “openness” and “secrecy” ’.1 On the other hand, experience shows that a breach of confidence doctrine is by no means an essential doctrine in all common law jurisdictions. For instance, in the United States the doctrine has over the last century largely been jettisoned in favour of trade secret and privacy torts and an expansive treatment of confidentiality contracts; while in Canada and New Zealand privacy law has more recently developed a sui generis form as a result of legislative and common law action. There are also some suggestions that, in some of the jurisdictions that continue to rely on the doctrine (for the time being), it has lost its traditional moorings and is fracturing into a series of sub-doctrines with little binding them together in terms of principle or policy. The United Kingdom is a case in point. English judges now quite commonly refer to breach of confidence in the...