Line to take - LTT97 - Detriment to the confider

• FOI/EIR: FOI
• Section/Regulation: s41
• Issue: Detriment to the confider
• Source: Information Tribunal
• Details: Bluck/ Epsom & St Helier University NHS Trust (17 September 2007); Sec of State for the Home Office / BUAV (25 April 2008); Higher Education Funding Council/ Guardian News (13 January 2010)
• Related Lines to Take: LTT41, LTT93, LTT94, LTT95, LTT96, LTT98, LTT172
• Related Documents: EA/2006/0090 (Bluck), EA/2007/0059 (BUAV - IT), [2008] EWHC 892 (QB) (BUAV - High Court), EA/2009/0036 (HEFCE),
• Contact: RM/HD
• Date: 07/04/2010
• Policy Reference: LTT97
• © Copyright Information Commissioner's Office, re-used with permission
• Original source linked from here: LTT

Line to take

It is often stated that for a disclosure to constitute a breach of confidence there has to be a detrimental impact on the confider. However this is not always the approach taken by the courts which sometimes find that detriment is not in fact a prerequisite of an actionable breach of confidence.

Furthermore an invasion of an individual’s privacy can be viewed as a detriment in its own right.

Further Information

Individual’s Privacy

In LTT93 the test of an actionable breach of confidence established by Coco v Clark was set out. One of the often quoted ingredients of this test is that an unauthorised disclosure of the information would be detrimental to the confider. However later in the same judgment Megary J made it clear that detriment is not a prerequisite of an actionable breach of confidence, explaining that, “At first sight, it seems that detriment ought to be present if equity is to be induced to intervene; but I can conceive of cases where a plaintiff might have substantial motives for seeking the aid of equity and yet suffer nothing which could fairly be called a detriment to him, as when the confidential information shows him in a favourable light but gravely injures some relation or friend of his whom he wishes to protect.” (emphasis ICO’s).

In many cases relating to an individual’s personal and private life it may be difficult to argue that disclosure will result in the confider suffering a detriment in terms of any tangible loss. The real consequence of disclosing personal and private information is an infringement of the confider’s privacy and there is a public interest in protecting the privacy of individuals.

The Bluck case (Pauline Bluck v IC & Epsom & St Hellier University NHS Trust — EA/2006/0090), which dealt with the confidentiality of a deceased person’s medical records, is very helpful in setting out the development of the law of confidentiality in relation to what can be characterised as personal information. It quotes from the Attorney General v Guardian Newspaper case (*1) in which first Lord Goff agreed with Coco v Clark that it was appropriate “to keep open the question of whether detriment to the plaintiff is an essential ingredient of an action for breach of confidence ... “. However later in the same ruling Lord Keith of Kinkel found that it would be a sufficient detriment to the confider if information given in confidence were disclosed to persons to whom he would prefer not to know of it, even though the disclosure would not be harmful to him in any positive way.” (Bluck para’s 7 & 8).

So it can be seen that there are two ways of looking at the issue of detriment in relation to personal information. You can say it is not necessary that the confider will suffer a detriment as a result of a disclosure (*2), or you can view the loss of privacy as a detriment in its own right as the Tribunal did in the Bluck case.

In the Home Office v BUAV & the ICO the High Court described how the law of confidence had evolved in respect to information on personal matters. These changes were a response to the Human Rights Act. The court (at para 33) concluded that information on personal matters could be regarded as private and so protected by the law of confidence even though it is quite trivial. Although in Coco v Clark the matter of triviality is dealt with as a separate issue to detriment, it can clearly be seen that the two are linked in that the more trivial a piece of information is, the less likely its disclosure would have a detrimental impact on the confider. (For more information on the HRA approach to the law of confidence please see LTT112)

Generally it will be simpler to adopt the first approach, i.e. the detriment is not a prerequisite of an actionable breach. Whichever approach you take the important thing is to fully consider how the disclosure would affect the confider as this will be a factor in weighing up whether there is a public interest defence to any breach of confidence — see LTT96).

Commercial Confidences

Where commercial information is purported to have been imparted in confidence the Commissioner considers that there would have to be a detrimental impact to the commercial interests of the confider for the exemption to be engaged.

This approach was supported in the case of the Higher Education Funding Council for England & Guardian News & Media Ltd. In this case, the Tribunal commented on the establishment of the distinction between information involving an individual’s privacy and information relating to commercial confidences. The Tribunal commented "...we should take note of the courts’ apparently consistent acceptance of the three part test (*3) ..ln contrast to the case law on commercial information, there have been several cases in recent years, involving the private information of an individual, where the court has not required any requirement to show detriment” (paras 40 & 41).

The Tribunal went onto acknowledge that the existence of this distinction may call into question whether the requirement for detriment should be retained in relation to commercial confidences. However, the Tribunal concluded:

“…we feel sure that, for the time being, this Tribunal, when dealing with the type of information in question in this Appeal (commercial confidence) should not depart from the line of authority from the higher courts leading from Coco v Clark” (paras 43).

(*1) Attorney General v Guardian Newspapers [1990] 1AC 109.

(*2) The information would still have to be more than trivial and not in the public domain -

see both Awareness Guidance No 2 and LTT93 — (Test of Confidence).

(*3) See LTT93