Confidential information is intangible right. It may or may not take a material form. Generally, confidential information is expressed orally or on paper by way of drawings, documents, data etc in the form of concepts, ideas, characteristics, formulations, solutions and so on. The person who discloses the confidential information is ‘confider’ and the person who receives it is ‘confide’. This is something which comes in the picture in transactions related to technology, commerce and the like. One must refer to the Spycatcher’s case while dealing with the topic of confidential information. This case is an important English tort law (a civil wrong that is a ground for a civil suit to compensate for damages) case on breach of confidentiality. The House of Lords laid down a general principle relating to a duty of confidence in this case. Accordingly, a duty of confidence arises when confidential information comes to the knowledge of a person and he has agreed that he should not disclose the confidential information in all circumstances. The elements of the doctrine of confidentiality include following elements:
- It must not be something which is a public property
- Confidence is imparted in the circumstances importing an obligation of confidence on the party other person to whom it is communicated and it would be a breach of good faith to publish it
- Unauthorized disclosure or communication of the confidential information so that it there is no just cause or excuse for disclosure and
- Detrimental to the person imparting the information
In Lac Minerals case (see here: https://tinyurl.com/mn8bb5f) it was emphasized that confide will not be allowed to use the information as a SPRINGBOARD for activates detrimental to the confider. This is a leading Supreme Court of Canada decision on the nature of fiduciary and confidential relationships. The Supreme Court found three elements namely, the information conveyed was confidential, it was communicated in confidence and it was misused by the party to whom it was communicated.