Commercialising Privacy and Privatising the Commercial: The Difficulties Arising from the Protection of Privacy via Breach of Confidence
A Kur, N Lee, A Ohly and G Westkamp (eds), Intellectual Property, Unfair Competition and Publicity – Convergence and Development EIPIN Series Vol II (Edward Elgar, 2014)
26 Pages Posted: 23 Jun 2015
Date Written: January 1, 2012
The action for breach of confidence is a malleable one that in the last decade, under the catalytic influence of the Human Rights Act 1998 (UK) (‘HRA’), has been adapted by English courts to give effect to privacy interests. Courts have explicitly addressed the role of Article 8 of the European Convention on Human Rights (‘ECHR’) in their analysis of breach of confidence principles, leading to an increased degree of (informational) privacy protection. However, this apparently convenient vehicle for protecting privacy interests is not without its difficulties. First, allowing private or personal information to be commercialised and protected as a trade secret via breach of confidence means that protection is no longer anchored to a privacy justification and begins to resemble, or risks developing into, a publicity right. This is aptly illustrated by the Douglas v Hello! litigation. Second, the issue arises whether commercial organisations can claim privacy protection in relation to commercial information, instead of, or in addition to, trade secret protection. This chapter will examine both of these difficulties, using the Douglas v Hello! litigation as the context for doing so, and will argue that there are several complications that arise from entangling privacy interests with the protection of commercial secrets.
Keywords: Douglas v Hello, privacy, individuals, corporations, publicity
Suggested Citation: Suggested Citation