Social Origins and Modern Developments
Chapter 5: The Forgotten Years of Breach of Confidence
Breach of confidence was not immediately forgotten. Indeed, the Copyright Act of 1911 seemed to contemplate its continuing existence, intimating that the fact that the property right in unpublished works had been abolished did not preclude its operation. And just two years after the Act, Swinfen Eady LJ suggested the doctrine might have a broad operation in Lord Ashburton v Pape,1 consistent with the old case of Tipping v Clarke:2 [T]he principle upon which the Court of Chancery has acted for many years has been to restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged.3 Yet only four years later in the 1917 case of Sports and General Press Agency, Limited v ‘Our Dogs’ Publishing Company, Limited4 the Court of Appeal held that the organizers of a dog show who purported to assign the sole photographic rights in the show had no basis to prevent an unauthorized photographer from photographing the event and selling copies to the defendant newspaper – and therefore its approved photographer’s assignee, the Sports and General Press Agency (a news service specializing in sport-related news), could not prevent the defendant’s publication. A difficulty with the case is to know precisely the reason for that decision. It was an extempore judgment barely reported. Lush LJ felt the need to add the more general qualifying proposition that ‘if those who promote shows or exhibitions wish to prevent the taking of photographs, they must...
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