Breach of Confidence

A lawsuit for breach of confidence is an action originating in common law concerning information between two or more parties. Basically, confidential information is communicated to one person, who then decides to use the information for an unfair gain or advantage. Breach of confidence deals solely with the restriction of the dissemination of commercially viable information.

For example, let's say you are a journalist covering a story about a controversial presidential candidate. You speak to his former employee who gives you information "off the record." You promise to keep the information confidential. After the interview, you write your story, meaning to keep his name and information a secret, but end up using it in the story anyway. Does the employee have a viable claim against you? Maybe a lawsuit for public disclosure of private facts? He also may file a breach of confidence action against you and possibly even the newspaper who employees you.

Below, you will find a general overview of a breach of confidence action, including the elements of the claim, possible defenses, and common remedies. Be sure to check with your state's laws to learn more.

Categories of Confidential Information

Confidential information may consist of medical records, employee records, or even personal information meant to be kept confidential. Typically, however, confidential information falls into three categories:

• Trade secrets
  
• Government secrets
  
• Private personal information

The key is that another person gained some value (monetary or otherwise) from the dissemination of the confidential information. Each case is fact-specific, and courts will need to hear all the evidence to make a determination of liability in a breach of confidence lawsuit.

Elements of Breach of Confidence

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

• There was an agreement (explicit or implied) between the holder of confidential or proprietary information and the defendant;
• The information was meant to be kept secret until otherwise agreed upon by the plaintiff; and
• Defendant used or disclosed the confidential information into the public domain.

Examples of Confidential Information

Courts have ruled that certain types of information are "confidential" in a number of cases throughout the country. These include information in a business relationship, information provided in a confidential meditation situation, privileged information employees have access to in their employment, and more.

Possible Defenses

There are several possible defenses to a breach of confidence claim, depending on what state you live in. Possible defenses include:

• The information was not confidential by nature;
• The information was already in the public domain; or
• There is a public interest in disclosing the confidential information.

Public Interest Defense

This defense requires the court to use a balancing test to determine whether a legitimate public interest outweighs the individual's right to confidentiality. For example, a board member learns from other members in confidence that her company is illegally polluting the environment and continues to do so. Here, she may be justified in disclosing this information to the public to protect the environment. This person may be able to claim "whistleblower protection" in some circumstances. Courts will examine other factors including the need to prevent harm and whether the disclosure of the information was in the interests of justice.

Possible Remedies

If you feel a breach of confidence has occurred against you, there are a number of 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.

Hire a Lawyer to Review Your Breach of Confidence Claim

If you believe you've been the victim of a breach of confidence violation or are currently being accused of this action, you'll likely want to speak to a local attorney. Breach of confidence lawsuits are complicated and can require a lot of research. Contact a personal injury attorney to learn more.

Additional Resources

• What is Invasion of Privacy?
• What are Intentional Torts?
• Invasion of Privacy: Intrusion