Breach of Confidence

Confidential information can be quite a broad term relating to various types of intel, ranging from employment information and intellectual property (IP), through to personal information, medical information and other commercially sensitive know-how. With that being said, it does not necessarily need to be outlined and protected in a formal contract to be considered a breach. This article covers in a little bit more detail what a breach of confidence is and how it is proven.

What is a breach of confidence?

A breach of confidence can still be considered an obligation between two or more parties. When confidential or secret information becomes known about a person or company in circumstances that it would be considered unfair if disclosed to others – even if it is not formally written into a contract – is how the Court would define a breach of confidence.

There are three important things that must be proven when determining if this has occurred. This includes:

  1. The information must have to have been confidential.

This means the information is not in the public domain and is considered relative secrecy. This could relate to an idea or product that is innovative and yet to be


  • The information was communicated with someone in circumstances where there was a clear ‘obligation of confidence’.

A reasonable person would expect there to be a duty of confidence based on the relationship and / or the way in which it was communicated to the other party.

  • The misuse of this information has cause detriment.

The information shared has been used intentionally and without authorised use, therefore negatively impacting the original person who shared the information. In fact, unintentional misuse of information is still enough to be considered subconscious plagiarism and is chargeable.

What are the penalties for a breach of confidence?

Depending on the circumstances, there could be quite a range of penalties that relate to breaches of confidence. In many instances, the common remedies would likely include injunctions and damages to the affected individual or company.

More information and/or legal support for a breach of confidence

If you find yourself in a situation where you believe someone has committed a breach of confidence against you or your company, you should consult one of our experienced legal team for more information. Our team have extensive experience in IP law and can work through your situation to discuss suitable courses of action.

We also recommend that individuals and companies always look to execute a confidentiality agreement or inclusion of a non-disclosure clause before sharing secretive information with other parties. This simply outlines in writing the obligation of all parties privy to this information to treat confidentiality.