Social Origins and Modern Developments
Chapter 4: Secrecy and Late Victorian Markets for Information
With the luxury of hindsight it is striking just how uncertain midnineteenth century judges appeared to be about their jurisdiction to protect confidential information. If anything, the uncertainty grew more pronounced in the next three decades of the century. Part of the reason was the older cases which (as noted in Chapter 2) were by no means clear on the separate character of a breach of confidence doctrine, and these continued to be cited and relied on after more modern authorities such as Prince Albert v Strange. Another part was an array of textbooks which made little attempt to reconcile the authorities even where they pointed in different directions. Rather they appeared content to summarize the various statements from cases without acknowledging areas of conflict or difficulty. A third part, perhaps, was a growing desire of common law judges to explain breach of confidence in the more familiar language of property and contract. Eventually the latter were to become the dominant motifs of the last decades of the century. And we might speculate that underneath this was an assumption that such language reflected the late Victorian idea of the sanctity of markets, including for information.1 To the extent that references to morality continued these were confined to bolstering and supporting the idea that loyalty to relations, promisekeeping and respect for another’s property rights were the social values of late-Victorianism. MORE MEDICINES: MORISON V MOAT An important starting point is the statement of Turner V-C in Morison v Moat,2 decided...
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