[2025] UKUT 308 (AAC)

the industry/sphere in which the parties operate may be relevant because “whether information should be treated as confidential will be judged in the light of the usage and practices of the particular industry concerned” (Clark & Lindsell on Torts (24^th edn, Sweet & Maxwell) at 25-10). It is therefore highly relevant that SoSE operates in the education sector because teaching is the paradigm example of sharing knowledge.

Information may lose the necessary quality of confidence and cease to be confidential. Once information has entered the public domain, “then, as a general rule, the principle of confidentiality can have no application to it” (Attorney-General v Guardian Newspapers Ltd (No. 2) [1990] 1 A.C. 109 at [282]). Confidentiality may therefore be lost if information is published on the internet; whether it is lost depends on the degree of availability (Barclays Bank plc v Guardian News and Media Ltd [2009] EWHC 591 at [22].)

The second Coco v Clark condition requires information to have been imparted in circumstances importing an obligation of confidence. Those circumstances may themselves destroy or counteract otherwise confidential information. As was said in Cocov Clark at page 420, “however secret and confidential the information, there can be no binding obligation of confidence if that information is blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential.”

The Commissioner’s confidentiality guidance note emphasises the role of explicit conditions, advising that confidentiality arises where (a) the confider of information attaches “explicit conditions to any subsequent use or disclosure” or (b) if not attached, the “restrictions on use are obvious or implicit from the circumstances”. The Appellant submits that (b) (implied restriction) was at issue in this case was because “there was no explicit obligation of confidence asserted by [SoSE] at the time they were delivering the Session in issue”. The courts will more readily imply an obligation of confidentiality where the context of the relationship between the parties calls for it such as, according to Clerk & Lindsell at 25-13, commercial relationships, trade custom, and professional advisors such as lawyers or bankers. It is submitted that none of these relationships come close to that of teacher and pupil.

There was clearly no contractual duty of confidence in this case. In the case of an equitable duty of confidence, “the touchstone by which to judge the scope of the confidant’s duty and whether it had been breached was “his own conscience”” (R v Department of Health Ex p. Source Informatics Ltd (No.1) [2001] Q.B. 424 at [31]. However, the test is not solely subjective. In De Maudsley v Palumbo and Others [1996] E.M.L.R. 460, Knox J, reflecting Coco v Clark at pages 420-21, held at page 471:

“The test in my view is objective - the question is were the circumstances such as to import a duty of confidence and, if so, the obligation is not to be avoided simply by not addressing the problem. On the other hand I accept that a factor, and it may be an important factor, is whether the parties did in fact regard themselves as under an obligation to preserve confidence, just as is a proven trade or industry usage in that regard but I do not accept that the test is exclusively subjective as to the parties' intentions.”

The third Coco v Clark condition includes a requirement for unauthorised use. The Appellant submits that this does not arise. There can be no question of unauthorised use since the information has not been disclosed to the Appellant.

Insofar as copyright is relevant to section 41 FOIA, Office of Communications v The InformationCommissioner [2009] EWCA Civ 90 demonstrates, at [51], that any intellectual property right (such as copyright) is not extinguished by its release under the FOIA. Richards LJ said, at [56]:

“where use of information in breach of intellectual property rights has beneficial as well as adverse consequences, the proposition that only the adverse consequences can be taken into account seems to me to run wholly counter to that scheme.”

The Appellant submits that, in this case, the public interest is to be considered from both the point of view of parents knowing what their children are being taught, and also from that of children being able to talk to their parents. The essence of the public interest defence is proportionality. The proposition that an exceptional case is required to override a duty of confidence that would otherwise exist is no longer good law (London Regional Transport v The Mayor of London [2001] EWCA Civ 1491). The test is simply whether there is a public interest in disclosure which overrides the competing public interest in maintaining the duty of confidence.

As to what the public interest defence may permit, Lord Denning, in Initial Services Ltd v Putterill [1968] 1 QB 396, made it clear, at page 405, that its ambit is broad, extending to “any misconduct of such a nature that it ought in the public interest to be disclosed to others”, and that “no private obligations can dispense with that universal one which lies on every member of the society to discover every design which may be formed, contrary to the laws of the society, to destroy the public welfare”. Now, the right to freedom of expression under Article 10 of the European Convention on Human Rights must also be served, as noted in Clerk & Lindsell at 29:

“[a]t issue is whether there is a compelling social need to prevent disclosure in order to protect the confidential information; any restriction imposed on the art.10 right by a court must be rational, fair and not arbitrary, and the right must be impaired no more than is necessary.”

If the application of the law of confidence to children is relevant, in Matalia v Warwickshire County Council [2017] EWCA Civ 991; [2017] E.C.C. David Richards LJ held, at [49], that 10 or 11-year-old candidates for an 11-plus examination would owe a duty of confidentiality so that a local education authority could restrain a candidate’s proposed publication of examination questions on social media. Richards LJ did not go so far as to hold that children could not disclose the information to their parents but said it would “be entirely consistent with principle to impose the duty of confidentiality on the parents”. Any duty of confidentiality would not persist beyond the sitting of the examination.