Breach of Confidence

You might trust another person with confidential information. If that person uses the data or details for an unfair gain or advantage, you may have reason to sue.

A lawsuit for breach of confidence is an action originating in common law about information between two or more people. Breach of confidence deals with restricting the dissemination of commercially viable information.

Below is an overview of a breach of confidence action. It includes the elements of the claim, possible defenses, and common remedies. Be sure to check with your state’s laws or discuss them with a local tort and injury lawyer to learn more.

Example of Breach of Confidence

Let’s say you are a journalist covering a story about a controversial presidential candidate. You speak to the candidate’s former employee, who gives you information “off the record.” You promise to keep the information confidential. After the interview, you write your story and use it in the story anyway.

Does the employee have a viable claim against you? Maybe a tort lawsuit for public disclosure of private facts? They also may file a breach of confidence action against you and the newspaper that employs you. They may assert that sharing the information didn’t serve the public good. 

Categories of Confidential Information

Confidential information may include medical records, employee records, or personal information. Confidential information falls into three categories of sensitive information:

• Trade secrets (e.g., secret ingredients in a popular food)
• Government secrets (e.g., military information)
• Private personal information (e.g., medical bills and records)
• Privileged information (e.g., confidential information exchanged through attorney-client privilege)

Courts have ruled that certain types of information are “confidential” in several cases. These include information in a business relationship, information provided in a confidential mediation situation, and privileged information employees can access in their jobs.

It’s not necessary to show that the person gained value (monetary or otherwise) from sharing the confidential information. But it would help prove breach of confidentiality. Each case is fact-specific, and courts must hear all the evidence to decide liability in a breach of confidence lawsuit.

Elements of Breach of Confidence

The elements for breach of confidence vary by state. But generally, to be successful in this claim, a person must establish the following elements:

• There was a confidentiality agreement (explicit or implied) between the holder of information and the defendant, who had a duty of confidentiality.
• The information was meant to be kept secret until otherwise agreed upon by the plaintiff.
• The defendant used or disclosed confidential information in the public domain without consent.

When a surgeon or a doctor must safeguard private information and commits a breach, they may also have legal liability in other ways, such as for medical malpractice and personal injury claims.

Possible Defenses to Breaching Confidence

Depending on your state, there are several possible defenses to a breach-of-confidence claim, including:

• The information was not confidential by nature.
• The information was required to be disclosed by law or through a court order.
• The information was already in the public domain.
• There is a public interest in disclosing the information.

Most confidentiality agreements have disclaimers that mention exceptions for disclosure in the legal process.

Public Interest Defense

This defense requires the court to use a balancing test to determine whether a legitimate public interest outweighs the person’s right to confidentiality.

For example, a board member learns in confidence that her company is illegally polluting the environment and continues to do so. She may be justified in sharing this with the public to protect the environment and help prevent bodily harm to potential injury victims.

In another example, a car manufacturing executive may learn that a defective chip could cause the wrongful death of drivers. The executive might have fair reason to disclose trade secrets about the vehicle manufacturing process to prevent personal injury cases.

These people may be able to claim “whistleblower protection” in some circumstances. Courts will examine other factors, including the need to prevent harm. They will also look at whether disclosing the information was in the interests of justice.

Possible Remedies for Breached Confidence

If you feel a breach of confidence has occurred against you, there are several things a court can do to punish the defendant or stop the behavior. This includes an injunction to prevent the further publication of the confidential information, monetary damages, and legal costs and fees.

If a defendant acts with reckless disregard or engages in egregiously malicious behavior as part of the breach, a court might also award punitive damages. Punitive damages punish bad behavior and set an example that discourages future wrongdoing.

Hire a Lawyer to Review Your Breach of Confidence Claim

Breach-of-confidence lawsuits are complicated and need a lot of research. This is especially true if they involve an injured person or an uncooperative insurance company. A breach of confidence can range from emotional distress to reputational damage.

If you believe you’ve suffered a breach-of-confidence violation or are being accused of it, you should speak to a personal injury attorney. Personal injury lawyers are equipped to provide legal advice about a wide range of injuries resulting from breach of confidence, as not every case necessarily involves physical harm. Many personal injury law offices provide free consultations, so talk to a legal professional as soon as possible.