An equitable right to enforce a duty of confidence is recognised
in all major common law jurisdictions and the pre-conditions are
essentially the same 46:
the information has the necessary quality of confidence;
the circumstances in which the information is imparted are such
that there is an understanding that it is to be treated as
confidential, or the recipient ought to have realised that the
information was to be treated in such a way; and
the party conveying the information must suffer a detriment as
a result of the disclosure.
A particularly useful aspect of the right to confidentiality is
that it will extend to third parties who receive confidential
information in breach of a duty of confidence owed by the
There appears to be no doubt in the law that a duty of
confidentiality can attach to a database having the necessary
quality of confidence. Indeed a classic case of breach of duty of
confidentiality occurs when an ex-employee takes with them a
customer list intending to use it for the purposes of their new
employment. In many cases the information contained in the database
will itself not be confidential. It is the selection of the
information for inclusion in the database which is confidential
(for example, in the case of the customer database, the names and
contact details of the customers may well be publically available.
However the fact that they are customers of the organisation in
question and thus have been included in the customer list is
However what is less clear is whether a duty of confidentiality
could be said to attach to a 'big data' database containing
information which on an individual basis may be publically
available, but which may have its value in its inclusion in the
database and the consequent possibility of correlation with other
The question of the confidentiality of preparatory works which
produce a product which is in the public domain was considered in
the well known speech of Lord Greene MR in Saltman Engineering
Co Limited v Campbell Engineering Co Limited47:
"The information, to be
confidential must, I apprehend, apart from contract, have the
necessary quality of confidence about it, namely, it must not be
something which is public property and public knowledge. On the
other hand, it is perfectly possible to have a confidential
document, be it a formula, a plan, a sketch, or something of that
kind, which is the result of work done by the maker upon materials
which may be available for the use of anybody; but what makes it
confidential is the fact that the maker of the document has used
his brain and thus produced a result which can only be produced by
somebody who goes through the same process."
Conversely, something constructed purely from materials in the
public domain may also be treated as confidential48:
"First, the information must
be of a confidential nature. As Lord Greene said in the Saltman
case at page 215, "something which is public property and
public knowledge" cannot per se provide any foundation for
proceedings for breach of confidence. However confidential the
circumstances of communication, there can be no breach of
confidence in revealing to others something which is already common
knowledge. But this must not be taken too far. Something that has
been constructed solely from materials in the public domain may
possess the necessary quality of confidentiality: for something new
and confidential may have been brought into being by the
application of the skill and ingenuity of the human brain. Novelty
depends on the thing itself, and not upon the quality of its
constituent parts. Indeed, often the more striking the novelty, the
more commonplace its components. ... But whether it is described as
originality or novelty or ingenuity or otherwise, I think there
must be some product of the human brain which suffices to confer a
confidential nature upon the information..."
These principles were applied by Laddie J in Ocular Sciences
v Aspect Vision Care Limited49 in relation to a
claim that a collection of contact lens designs, all of which
designs were in the public domain, was confidential. Laddie J held
that in order to attract confidentiality in such a collection,
there must be some product of the skill of the human brain. A mere
non-selective list of publicly available information should not be
treated as confidential even if putting it together involves some
time and effort. No relevant skill is employed.
Although the words of Laddie J above engender notions more
familiar in copyright, it appears that they are not intended to
create a requirement of 'skill' in the compilation of a
database in order for the database to enjoy protection under the
rubric of confidentiality. Rather the 'skill' test is a
measure as to whether anything new has been created, which in
itself may be considered confidential, even where its contents are
not. The customer list would be one example of where something new
has been created, whereas a complete list of a number of contact
lens designs adds nothing to the lens designs themselves and so
there is nothing to which confidentiality can attach.
46See for example in Australia Smith Kline
& French Laboratories (Aust) Ltd v Secretary, Department of
Community Services and Health (1990) 22 FCR 73; Coco v A. N.
Clark Engineers Ltd  RPC 41 in the United Kingdom, and A
B Consolidated Ltd v Europe Strength Food Co Pty Ltd  2
NZLR 515 (CA) in New Zealand. 47(1948) 65 RPC 203 at 215 48Per Megarry J. in Coco v A. N. Clark (Engineers)
Limited  RPC 41 at 47 49 EWHC Patents 1
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Shelston IP has been awarded the MIP Global Award for
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