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PINKIE PROMISE?

 

Grace Teoh explains why you may not need to rely on ancient oaths to protect confidential information

Lucius Annaeus Seneca once said, "If you wish another to keep your secret, first keep it to yourself". Approximately 17 centuries later, Benjamin Franklin morbidly reiterated, "Three may keep a secret, if two are dead". In (comparatively) more recent times, Marshall McLuhan was quoted as saying, "Publication is a self-invasion of privacy".

What these three quotes have in common is the theme of confidence, or the protection thereof. Short of tying every single person one comes across with the legal knots of confidentiality clauses in contracts, are the law and its enforcers, the courts, sufficiently equipped to maintain the protection of confidence? Is one required to invoke the ancient oath of "pinkie promises" and "cross one's heart and hope to die" every single time one imparts information in trust?

Fortunately, the courts have yet to resort to such dire prerequisites. In the oft-cited decision of Megarry J (as he then was) in Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41, his Lordship spelt out three elements that are essential to a cause of action for breach of confidence.

THE CASE OF COCO v CLARK

In Coco, the plaintiff had designed a moped and had sought the defendant company's assistance to manufacture the same, based on the plaintiff's designs. The parties had a falling out and the defendant subsequently manufactured a moped similar in design to the plaintiff's, named the Scamp moped. There were two alleged impediments to the plaintiff's action against the defendant for breach of confidence in this situation –

  1. as there was no formal contract signed between the parties, the plaintiff could not sue the defendant for breach of contract, whether under a confidentiality clause or because the contract created a confidential relationship between them; and
  2. the defendant's defence was two-fold: that the plaintiff had not imparted any confidential information, and that the defendant had not used any confidential information in the manufacture of the Scamp moped.

Megarry J was having none of that. In his judgment, his Lordship summed up the three elements that are normally required, sans contractual relationships, for a case of breach of confidence to succeed. These elements are as follows -

  1. the information was of a confidential nature;
  2. the information must have been communicated in circumstances importing an obligation of confidence; and
  3. there must be an unauthorised use of the information to the detriment of the person communicating it.

"SHHH! IT'S A SECRET!"

The question then, is what would be considered secret or confidential information?

Generally, all information not in the public domain or not "notoriously known", may be confidential. Among the first things that come to mind are trade or commercial secrets such as patents and customer lists. Personal data may also be confidential information.

The English courts have yet to specify the scope of protection extended to information. In Coco, it was held that "trivial tittle tattle, no matter how confidential" cannot be protected. By contrast, in Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) (1984) 156 CLR 414, it was held that it may be enough that the plaintiff is concerned with the secrecy of the information, even if the information is not valuable in monetary terms. It is thus necessary for the courts to consider the facts on a case-by-case basis.

Next, how does one identify circumstances importing an obligation of confidence?

Megarry J re-emphasised Lord Greene's statement in Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203, that however confidential the circumstances in which the information was given, there can be no breach of confidence in revealing to others something which is already common knowledge.

In other words, to start off, one must identify the extent to which the information was known outside of the confidor and the confidant. Next, he must identify whether there was a temporary relationship of confidence between the confidor and the confidant. In Schering Chemicals Pty Ltd v Falkman Pty Ltd [1981] 2 All ER 321, Shaw LJ posed this as whether the confidant recognised that the information was confidential at the time he was confided in.

Finally, one must consider whether there was unauthorised use of the information.

The courts have been equivocal in expressly ignoring the requirement for "detriment" to the confidor, when considering the third element. Megarry J in Coco considered that there may be circumstances wherein the plaintiff suffers no apparent detriment, but wishes to keep the information confidential for other reasons.

So then why was the third element of the test posed in such a way? According to Robert L Dean in The Law of Trade Secrets and Personal Secrets; Sydney; Law Book Company, 2002, one of the answers may be that an action for breach of confidence is based on equity, and equity is used to enforce an obligation, not to compensate for a wrong. Alternatively, it may be that the courts have not ignored the requirement for "detriment", but have only viewed it with a more subjective eye, i.e. that it causes sufficient concern for the plaintiff to initiate a breach of confidence suit.

Megarry J in Coco hastened to add that even if the confidential information is a part of a larger set of information that has already been put in the public domain, it does not mean the defendant is entitled to use the communication as a "spring board" to publish the confidential information as well.

DIFFERENCE BETWEEN PRIVACY AND SECRECY

Is there a difference between privacy and secrecy? The English courts have sought to extend the application of the three elements in Coco to cover breach of privacy rights, in one form or another, but have continuously fought to draw a distinction between protecting confidentiality and protecting privacy rights.

In Campbell v MGN Ltd [2004] 2 AC 457, the plaintiff was an internationally famous fashion model who was frequently in the public eye. She claimed publicly that she did not take drugs or support the use thereof. The defendant, a newspaper publisher, published articles disclosing the plaintiff's drug addiction, therapy for the addiction and details of the therapy, including photographs of the plaintiff on the street as she left one of her therapy sessions. The plaintiff sued for breach of confidentiality.

The English courts struggled with the fact that the plaintiff had appeared to have voluntarily put confidential information about herself in the public domain first, and thus may have failed the second element.

The House of Lords then reviewed the threshold of Megarry J's test in Coco and held that the courts should consider whether a reasonable man in the position of the subject of the disclosure, not the recipient, would find the disclosure offensive. In that sense, the publication of the details of the plaintiff's therapy went beyond necessary disclosure to substantiate the articles, and the context in which the photographs were published added to the overall intrusion of the plaintiff's privacy.

In Douglas and Ors v Hello! Ltd and Ors [2007] 4 All ER 545, the House of Lords was once again faced with an attempt to enforce breach of privacy rights vide a claim for breach of confidentiality. The appellant was the magazine "OK!", which had contracted for the exclusive right to publish the photographs of the wedding of celebrities, Michael Douglas and Catherine Zeta-Jones. The respondent was the appellant's rival "Hello!", which had published photographs surreptitiously taken by an unauthorised photographer.

The House of Lords first identified the confidential information: the photographs, or rather, the exact graphical representation of the wedding. Other publications were perfectly entitled to publish descriptions of the Douglases' wedding, but only OK! was entitled to publish the exact graphical representation of the wedding as that was what OK! had paid the Douglases £1m for. The fact that the information happened to be in relation to the Douglases' private life was irrelevant.

The House of Lords went on to consider the circumstances of the Douglases' wedding. Although the fact that the Douglases would be wed was in the public domain, the transaction between the Douglases and OK! was for each photograph taken by OK! to be treated as a separate piece of information that only OK! had the right to publish. To that effect, the Douglases had arranged for strict security and imposed an obligation of confidence on its guests in respect of any photographs of the wedding. These arrangements were not to protect the privacy of the Douglases' wedding, but to protect the commercial interests of OK!. As such, it had imparted the necessary circumstance of confidence which bound, among others, the unauthorised photographer and Hello!

THE SITUATION BACK HOME

The Malaysian courts have greeted this development in the law with great gusto. Apart from having long adapted the use of the three elements in Coco to suits for breach of confidentiality by employees and in other commercial contractual relationships, the Malaysian courts appear to have welcomed the English courts' decisions in Campbell and Douglas, to extend the protection to privacy rights, with open arms.

In Lee Ewe Poh v Dr Lim Teik Man & Anor [2011] 4 CLJ 397, the first defendant was the surgeon who successfully removed the plaintiff's haemorrhoids. During the procedure, the first defendant had taken photographs of the plaintiff's nether regions without her consent, for medical purposes.

The High Court cited Lord Greene in Saltman and found that the photographs of the plaintiff's nether regions ought to be reasonably inferred as information that had the necessary quality of confidence as it involved her modesty, decency and dignity. There was an obligation of confidence as there was a doctor-patient relationship, thus the first defendant was duty-bound to maintain the strictest confidence of those photographs.

The High Court went one step further and, citing the Court of Appeal in Maslinda Ishak v Mohd Tahir Osman & Ors [2009] 6 CLJ 653, held that the invasion of privacy rights is an actionable tort under Malaysian common law.

Taking this cue to set a new line of precedents, the High Court in Sherinna Nur Elena bt Abdullah v Kent Well Edar Sdn Bhd [2011] MLJU 150 held that it is desirable that the law develops the tort of breach of privacy.

In Sherinna, the plaintiff was a beauty queen who discovered that her photographs and image were used without her authorisation on the packaging, as well as advertisements, of the defendant's products. The plaintiff averred that she had a right to privacy, and that she had copyright in her own photograph and image. In response to the defendant's submission that common law did not recognise privacy rights, the High Court cited, among others, Douglas, Lee Ewe Poh and Maslinda Ishak, in support of the implicit recognition of privacy rights in common law.

To this end, the High Court in Lew Cher Phow & Ors v Pua Yong Yong & Anor [2011] MLJU 1195 observed that recent case law indicates that the Malaysian courts are leaning in favour of recognising the right to privacy, especially given that the courts have to move with the change in times. The High Court went one step further, and held that the right to privacy is a fundamental right entitled to protection.

AN AMARANTHINE LANDMARK CASE?

Adopting the dicta of the High Court in Sherinna, the law on the invasion of privacy in Malaysia must necessarily evolve, especially with the internet era of Facebook and YouTube, where lives can be destroyed by such unwanted invasion of privacy with just a click of a button.

One wonders whether Megarry J in Coco had the power of foresight when his Lordship cited Lord Greene in Saltman; did his Lordship envision the speed at which trigger-happy social media users could lose protection of their confidential information by sharing it indiscriminately with the click of a button without giving sufficient forethought to the consequences of doing so until the information has blazed into the public domain, beyond all hopes of being salvaged?

It would be fair to say that Coco is not merely a landmark case that is consigned to the annals of legal history. It will continue to be cited and applied in the foreseeable future, in the dawn of breach of privacy laws, the advent of social media, and the unfortunate lack of common sense and foresight in the population.

Writer's e-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

 
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