Big Data: Legal Challenges (Full Report)

An equitable right to enforce a duty of confidence is recognised in all major common law jurisdictions and the pre-conditions are essentially the same 46:

  1. the information has the necessary quality of confidence;
  2. the circumstances in which the information is imparted are such that there is an understanding that it is to be treated as confidential, or the recipient ought to have realised that the information was to be treated in such a way; and
  3. the party conveying the information must suffer a detriment as a result of the disclosure.

A particularly useful aspect of the right to confidentiality is that it will extend to third parties who receive confidential information in breach of a duty of confidence owed by the disclosing party.

There appears to be no doubt in the law that a duty of confidentiality can attach to a database having the necessary quality of confidence. Indeed a classic case of breach of duty of confidentiality occurs when an ex-employee takes with them a customer list intending to use it for the purposes of their new employment. In many cases the information contained in the database will itself not be confidential. It is the selection of the information for inclusion in the database which is confidential (for example, in the case of the customer database, the names and contact details of the customers may well be publically available. However the fact that they are customers of the organisation in question and thus have been included in the customer list is not).

However what is less clear is whether a duty of confidentiality could be said to attach to a 'big data' database containing information which on an individual basis may be publically available, but which may have its value in its inclusion in the database and the consequent possibility of correlation with other data.

The question of the confidentiality of preparatory works which produce a product which is in the public domain was considered in the well known speech of Lord Greene MR in Saltman Engineering Co Limited v Campbell Engineering Co Limited47:

"The information, to be confidential must, I apprehend, apart from contract, have the necessary quality of confidence about it, namely, it must not be something which is public property and public knowledge. On the other hand, it is perfectly possible to have a confidential document, be it a formula, a plan, a sketch, or something of that kind, which is the result of work done by the maker upon materials which may be available for the use of anybody; but what makes it confidential is the fact that the maker of the document has used his brain and thus produced a result which can only be produced by somebody who goes through the same process."

Conversely, something constructed purely from materials in the public domain may also be treated as confidential48:

"First, the information must be of a confidential nature. As Lord Greene said in the Saltman case at page 215, "something which is public property and public knowledge" cannot per se provide any foundation for proceedings for breach of confidence. However confidential the circumstances of communication, there can be no breach of confidence in revealing to others something which is already common knowledge. But this must not be taken too far. Something that has been constructed solely from materials in the public domain may possess the necessary quality of confidentiality: for something new and confidential may have been brought into being by the application of the skill and ingenuity of the human brain. Novelty depends on the thing itself, and not upon the quality of its constituent parts. Indeed, often the more striking the novelty, the more commonplace its components. ... But whether it is described as originality or novelty or ingenuity or otherwise, I think there must be some product of the human brain which suffices to confer a confidential nature upon the information..."

These principles were applied by Laddie J in Ocular Sciences v Aspect Vision Care Limited49 in relation to a claim that a collection of contact lens designs, all of which designs were in the public domain, was confidential. Laddie J held that in order to attract confidentiality in such a collection, there must be some product of the skill of the human brain. A mere non-selective list of publicly available information should not be treated as confidential even if putting it together involves some time and effort. No relevant skill is employed.

Although the words of Laddie J above engender notions more familiar in copyright, it appears that they are not intended to create a requirement of 'skill' in the compilation of a database in order for the database to enjoy protection under the rubric of confidentiality. Rather the 'skill' test is a measure as to whether anything new has been created, which in itself may be considered confidential, even where its contents are not. The customer list would be one example of where something new has been created, whereas a complete list of a number of contact lens designs adds nothing to the lens designs themselves and so there is nothing to which confidentiality can attach.

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Footnotes

46See for example in Australia Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73; Coco v A. N. Clark Engineers Ltd [1969] RPC 41 in the United Kingdom, and A B Consolidated Ltd v Europe Strength Food Co Pty Ltd [1978] 2 NZLR 515 (CA) in New Zealand.
47(1948) 65 RPC 203 at 215
48Per Megarry J. in Coco v A. N. Clark (Engineers) Limited [1969] RPC 41 at 47
49[1996] EWHC Patents 1

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