Breach of Confidence by Government, Smith Kline and the TRIPS Agreement - Public Interest to the Rescue

Abstract

Article 39(3) of the TRIPS Agreement of 1993 governs the protection of confidential information provided to government in particular circumstances. Australia’s obligations under this provision are supposedly fulfilled by the common law action for breach of confidence. Yet where the government body proposes to use the confidential information in a manner not directly related to the particular purpose for which the information was provided (as opposed to simply disclosing that information), there is some uncertainty as to whether breach of confidence provides sufficient protection. The leading case in the area is Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services and Health, a case which has been applied in various circumstances but not fully examined in relation to this particular issue. This paper argues that in order to bring Australian law in line with the TRIPS Agreement, the distinction between public and private information needs to be more carefully drawn, and the public interest exception applied where necessary.

Keywords: TRIPS, breach of confidence, Australia, public interest