Social Origins and Modern Developments
Chapter 8: Epilogue: The Reinvention of Tradition
Where is the doctrine of breach of confidence now? Can it be located in the statement of Lord Hope in the leading post-Human Rights Act case, Campbell v Mirror Group Newspapers Ltd that: [A] duty of confidence will arise whenever the party subject to the duty is in a situation where he knows or ought to know that the other person can reasonably expect his privacy to be protected. The difficulty will be as to the relevant facts, bearing in mind that, if there is an intrusion in a situation where he knows or ought to know that the other person can reasonably expect his privacy to be respected, that intrusion will be capable of giving rise to liability unless the intrusion can be justified: . . .1 Lord Hope cites Lord Goff in Spycatcher as authority for this proposition, and accepts along with Lord Goff that where the public interest in disclosure is invoked as a counterweight to the interest in maintaining confidentiality as against a person who has notice of confidence this ‘may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure’.2 Thus, it is suggested, the law of confidence has not substantially changed with the Human Rights Act but has simply become more refined in its elucidation of principles that conform with the human rights standards of the Convention – an approach that may appeal in other common law jurisdictions that do not have a Bill...
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