The breach of one's confidence by another can be a disturbing event. You trusted the recipient to keep the confidential information to him or herself. You then discover that the information has been communicated more widely and not only is your trust shattered, but you feel you have suffered damage or loss as a result. Is there a legal remedy or option available for you? There is. It is known as the tort of "breach of confidence".
The law requires three elements to be proven in a breach of confidence claim:
- that the information must have the necessary quality of confidence;
- that the information must have been imparted in circumstances importing an obligation of confidence; and,
- that there must have been an unauthorized use of that information to the detriment of the party communicating it – you.
The recognition of breach confidence in Ontario law is a fairly recent development. The tort applies to both commercial and personal breaches of confidence. Each of the three elements required for the tort can be considered as separate steps.
Step One: The information has the necessary quality of confidence. Information in the public realm will not usually have this quality. To have this quality, the information will usually need to be private and personal to you and not otherwise publicly available.
Step Two: The obligation of confidence will usually arise from a direct promise, or from circumstances that make it clear that the information is both confidential and has been communicated by you in circumstances such that the recipient knew or ought to have known it was confidential In other words, the other person should have known that the information was not to be circulated more widely without your express consent.
Step Three: The detriment necessary to complete the claim could be a use of the information for commercial advantage to your expense or loss. In a personal case, the detriment could involve psychological, emotional and physical harm which results from the unauthorized disclosure. The remedy is in damages. Damages are the monetary valuation of the effect upon you. In a commercial case, damages are more easily determined by a return of profit or a by the calculation of the loss suffered. In a personal case which has led to physical, emotional or psychological damages, at least in one case, the Ontario courts have recognized and granted an award of damages for pain and suffering as well as psychological harm.
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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.