Charting the Journey From Confidence to the New Methodology

Since the enactment of the Human Rights Act 1998, breach of confidence has been rapidly reconfigured to become a key vehicle for the preservation of individual privacy in accordance with Article 8. This development has formed a significant countervailing force to the excesses of a powerful and increasingly intrusive tabloid media which seeks to profit from the exploitation of commercially valuable personal information. But the rapid evolution in breach of confidence has generated a range of concerns about the suitability of employing an equitable doctrine traditionally geared towards safeguarding commercial trade secrets to protect a fundamental human right. Commentators have questioned whether post-HRA caselaw has resulted in a distortion of the confidence action and a lack of coherence in the justifications underpinning this area

This article considers recent caselaw and commentary in this area, paying specific attention to the way in which breach of confidence and Articles 8 & 10 have interacted and merged. It argues that despite legitimate concerns from commentators about early directions in this area, recent judgments have yielded clarification and improvement. Breach of confidence has been colonised and dominated by the ongoing complex opposition between Articles 8 and 10. But vitally, confidence also appears to have been gradually discarded as privacy protection takes its own shape as an independent action that co-exists alongside ‘classic’ confidence. However, remnants of confidence still have background roles to play in privacy disputes where a ‘new methodology’ is applied.