Breach of Confidence

Breach of Confidence

Social Origins and Modern Developments

Megan Richardson, Michael Bryan, Martin Vranken and Katy Barnett

This concise yet detailed book explores the historical foundations and modern developments of the ancient doctrine of breach of confidence. The authors show that despite its humble beginnings, stilted development and air of quaintness the doctrine has modern relevance and influence, its sense of ‘trust and confidence’ still resonating with the information society of today. Topical chapters include, ‘Inventing an equitable doctrine’, ‘Privacy and publicity in early Victorian Britain’, ‘Searching for balance in the employment relationship’, as well as many others.

Chapter 2: Inventing an Equitable Doctrine

Megan Richardson, Michael Bryan, Martin Vranken and Katy Barnett

Subjects: law - academic, information and media law, intellectual property law


Sir George Jessel once remarked that equitable doctrines, unlike their common law counterparts, were often invented and that in many cases we know the name of the inventor.1 Equitable protection of breach of confidence, however, is not a doctrine, like the equity of redemption or the restrictive covenant whose origins can be traced back to a seminal case. The decision which finally gave shape to the doctrine in the mid-nineteenth century was Prince Albert v Strange.2 That case is the focus of the next chapter. But as the judgments and arguments of counsel makes clear, the fragments of equitable principle which coalesced to form the doctrine of breach of confidence had been well known to equity for at least a century. The puzzle lies further back in the story of equity: what is the source of those fragments? In many respects the development of the law of breach of confidence is a story of equity’s judges creatively exploiting terminological ambiguity. The word ‘confidence’ was used in several senses in early equity, usually in the context of the obligations imposed on feoffees to uses (as trustees of land were known until the nineteenth century), or more generally as the rationale for imposing strict anti-opportunistic behaviour obligations on fiduciaries. Some formulations of the fiduciary’s obligation of confidence were applied more generally to justify the enforcement of confidentiality obligations. The symbiotic (or, less charitably, confused) relationship between the law of confidentiality and fiduciary obligations is illustrated by a dictum of Megarry J in...

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