[2025] UKUT 308 (AAC)

the argument that the First-tier Tribunal (and previously the Commissioner) confused confidentiality and copyright is misplaced. The law of confidence often looks to the originality of information in determining whether it has the necessary quality of confidence (Saltman and Fraser v Thames Television Ltd [1984] Q.B. 44, at [65–66]: “the content of the idea [must be] clearly identifiable, original, of potential commercial attractiveness …”). The findings in paragraph 144 of the Tribunal’s reasons are entirely consistent with Saltman. Paragraph 140 shows that the Tribunal recognised, and found, that the Slides were a ‘unique product’ created by application of human ingenuity.

The Appellant’s submissions fail properly to distinguish between discussion of topics in the Session, which can raise no issue under the law of confidence, and dissemination of the Slides, which is capable of amounting to a breach of confidence. The Appellant seems to argue that what SoSE really sought to protect were design elements of the Slides, matters such as colour, font, graphics and layout, and says those are matters protected by copyright, not the law of confidence. However, the First-tier Tribunal was not looking exclusively at the content of the Slides, as is shown by paragraph 144 of its reasons which found that schools or SoSE’s competitors could draw on freely available resources to write and deliver their own lessons on consent but, rather than doing that, might instead utilise the ready-made set of slides created by SoSE.

The First-tier Tribunal’s approach to detriment was entirely orthodox. As recognised by the Commissioner’s confidentiality guidance note, detriment usually takes the form of damage to the confider’s commercial interests. If the Appellant seeks to draw a (artificial) distinction between the intrinsic quality of the Slides and their subsequent use, the argument was discounted by the Court of Appeal. In Office of Communications v The Information Commissioner [2009] EWCA Civ 90, at [55], the Court said that “regard can and must be had not just to the immediate effect of disclosure but also to its wider consequences, including subsequent use of the information disclosed”.

The argument that the detriment identified by the First-tier Tribunal pertains solely to the law of copyright has no merit. The Tribunal found that, if there were a loss of confidentiality, SoSE would have to rely on copyright as a ‘second line of defence’, as Mr Perry put it at the hearing, and would face significant practical obstacles in doing so. That was the approach taken by the Information Tribunal in Ofcom, a decision upheld on appeal to the Court of Appeal, where the Tribunal said, “once material protected by an intellectual property right has been released to a third party it becomes more difficult to discover instances of infringement (either by that third party any person to whom it passes the material), to trace those responsible for it and to enforce the right against them”.