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Wednesday, 19 December 2012

Gurry on Breach of Confidence: a review

The book review season is now upon us, and over the next couple of weeks the IPKat and his friends will be reviewing, or at least previewing, some of this year's new titles.  We start with this review by Dr Mira T. Sundara Rajan:

Gurry on Breach of Confidence: The Protection of Confidential Information, Second Edition, by Tanya Aplin, Lionel Bently, Phillip Johnson and Simon Malynicz (Oxford University Press, 2012).

The confidentiality of information deserves to be recognized as one of the key legal problems of our age. As Francis Gurry notes, in his Foreword to this Second edition of Gurry on Breach of Confidence, “Technology has made information precarious.” Conflicts over confidential information arise with growing frequency, and they do so in a bewildering array of contexts, from Aboriginal knowledge to commercial enterprises and state secrets.

In their introductory remarks, the authors note the far-reaching consequences of rules on confidence, pointing out that
“...confidentiality is a legal concept which is of serious, and almost certainly increasing, importance. Confidentiality is a critical tool in the regulation of the dissemination of ideas and information, and as such plays a key role in determining the boundary between ‘openness’ and ‘secrecy’. The work of the law of confidentiality thus has an impact upon personal autonomy, economic mobility, political transparency (and thus accountability), open justice, as well as innovation, competition, and economic prosperity.” (para. 1.24)
Yet, as this book demonstrates, the law on breach of confidence is far from straightforward. The complexity of this area of the law owes itself to at least two important factors. First, the legal rules on breach of confidence are derived from diverse sources, both ancient and modern, leading to challenges in locating, articulating, and applying the law. Secondly, the fact that confidential information arises in so many contexts leads to an overlap between the legal principles on confidence and a wide variety of related legal regimes. Accordingly, an understanding of confidence may depend on the ability to work simultaneously within different legal and conceptual frameworks. For example, confidentiality in the context of intellectual property rights can mean something quite different from the confidentiality of state secrets (or, indeed, as in the Spycatcher and Blake cases, confidentiality of state secrets and copyright issues may intersect).

The authors of Gurry on Breach of Confidence provide an excellent guide to understanding the  complex legal issues involved. The book is systematic and well-organized, and its treatment of the subject aims to be comprehensive.

The book opens with a series of chapters dealing with “Preliminary Matters,” tracing the historical steps in the evolution of breach of confidence – an approach that is common enough in legal studies, but seems truly essential in this area – and outlining the policy bases for the restriction of information. The discussion is detailed and academic, and would provide scholars and students with a clear basis for understanding the origins of the modern law.

The book goes on to a practical and concise examination of the various jurisdictional bases of an action for breach of confidence, an important exercise given what the authors call the “lingering uncertainty and controversy” surrounding this issue. Contract, equity, property, and tort law are all identified as potential sources of law. The importance of a historical perspective is again emphasized in this section, where the relatively ancient doctrines of equity and notional or, as the authors say, “metaphorical,” property, are discussed (para 4.74; including the controversial concept of “common law copyright” in unpublished works, paras 4.77-79).

The authors then proceed to a useful discussion of the nature of confidential information itself. They approach this problem from both a definitional perspective, examining the characteristic attributes of confidentiality, as well as a practical angle, identifying the major contexts in which confidential information may arise.  The focus is on four broad categories: trade secrets, artistic and literary “information,” government secrets, and personal information.

At the heart of the book lies an extended discussion of the obligation of confidence itself. Different professional and other classes are considered, and the authors review the special circumstances arising from employment relationships and state secrets. The treatment of remedies is extensive, as it deserves to be in relation to such a complex and subtle subject, and is sure to be a useful resource for practitioners. Finally, in an interesting and helpful set of concluding chapters, the authors consider the international aspects of breach of confidence in both public and private international law.

The clarity of the structure is matched by generally clear writing throughout the book, which helps to convey this complex subject-matter with a minimum of confusion.

The book should be useful and interesting to both academics and practitioners, with different chapters appealing to each (the chapters are largely self-contained and could stand alone). Students at all levels will find it to be a helpful resource for gaining an understanding of this area.

As noted above, the work is comprehensive in nature, and this team of authors has succeeded in collaborating very effectively to produce a work of this scope. It may be worth noting that the comprehensiveness of the book necessarily means that specialized areas, like questions of sacred knowledge in Aboriginal communities, receive tantalizing hints without an in-depth treatment. This reviewer must apologize for seeking more coverage of issues in a book that already exceeds 800 pages in length – but the readers’ interest would be piqued, and the book could perhaps be still more appealing, if the authors were to extend their study to new areas of interest such as this one, in future editions.

It may also be important to consider how the jurisdictional scope of the book could be expanded – perhaps by including more citations to leading works on confidence from other major jurisdictions such as the United States. The work as it stands is (and is intended to be) UK-centric. As the authors note, and as original author Francis Gurry remarks in his Foreword, breach of confidence is an area that is profoundly affected by developments in information technology. Information moves with unprecedented ease in our era, and there are few impediments to its flow across borders. An expanded discussion of how the rules on breach of confidence intersect in different countries could be very useful. .
Bibliographic details are available from the Oxford University Press website here.

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