The Duty of Confidence Revisited by Nyuk Yin Nahan research Note

Please note that this post is from 2018. Evaluate with care and in light of later events.

Australian privacy law draws more on English precedent (focusing on confidential relationships) than American privacy law does (which turned Warren and Brandeis’ “Right to Privacy” into a series of torts, then added a related vision of autonomy, and mixed it all with a dose of anti-government paranoa).

What is the “law of confidence”?

Nyuk Yin Nahan’s article, The Duty of Confidence Revisited: The protection of confidential information (2015), summarizes the “classic” version:

The classic duty of confidence, according to Coco v AN Clark (Engineers) Ltd arises in circumstances where a person entrusts confidential information to a confidant, typically, for his knowledge or for some limited use. We say routinely that there are three requirements for the cause of action (i) the information must have the necessary quality of confidence, (ii) the information must be imparted in circumstances importing a duty of confidence, and (iii) there must be actual or threatened breach. The duty of confidence is ext ended to a person who obtains confidential information surreptitiously or improperly. In England, it is settled that there is a duty on even one who chances upon another’s confidential information accidentally. In Australia, the accidental ‘confidant’ is arguably under a similar duty.

Third Parties

One key distinction with American jurisprudence — which sees any revelation of information to a third party as leading to a full loss of any privacy claim (see Katz v. United States and Smith v. Maryland)—is that in Anglo-Australian law, includes third parties.

That is, privacy is not lost just because information is shared, willingly or not, with another person.