breach of confidence

an act or omission that infringes the obligation of confidence. This obligation is difficult to classify. Many obligations of this kind arise from contract, express or implied. It may be a tor-tious or delictual obligation or it may be completely sui generis, founded on equity. It was clearly accepted in the 'Spycatcher' case (Att. Gen. v. Guardian Newspapers Ltd (No. 2) [1988] 3 WLR 776) and again approved in the House of Lords in the Scottish case involving yet another security services' case: Lord Advocate v. The Scotsman Publications Ltd 1989 SLT 705. The general rule is that anyone is entitled to communicate anything he pleases to anyone else, by speech or in writing or in any other way. That rule is limited by law of defamation and other restrictions similar to these, mentioned in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969). On the widest view, however, if information is imparted in circumstances from which it is clear it was confidential, the recipient comes under an obligation not to impart it. Others receiving the information from this primary confidant may come under a similar obligation. The wrongfulness in the conduct may make it possible for a claim restitution to succeed, making the person revealing the information liable to account for profits. This was certainly the case where the House of Lords held that the publication was a breach of confidence, even although at the time of publication the information was not confidential! The decision was, however, against a notorious spy: Att. Gen. v . Blake (2000) TLR 595.