Confidential Information as Property?

Abstract

There has been a long-standing debate about whether the protection of confidential information is a property right. The eminent Professor Finn once described this as ‘[p]erhaps the most sterile of debates’. So why risk venturing into this arena again? My motivation for doing so is the Court of Appeal decision in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council (‘Veolia’) where it was held, with fairly sparse reasoning, that Article 1 of the First Protocol of the ECHR (‘A1P1’) embraced confidential information. This seemed a surprising conclusion in light of substantial authority to the contrary in English law and the scholarly views on this issue, but also in terms of the potential impact of such a view, i.e. creating a human or fundamental right to the protection of confidential information. Therefore, I want to revisit the question of whether the protection of confidential information that is provided by the (English common law) action for breach of confidence is or should be recognised as property, in particular from the human rights perspective. I intend to tackle this question by first outlining the Veolia decision and subsequently critiquing it in light of relevant authorities. I will then explore the conceptual difficulties of characterising confidential information as ‘property’ and finally, some of the potential risks of doing so.