What is the difference between breach of confidentiality and invasion of privacy

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Click here to take part in a short, anonymous survey to help us improve our site. Privacy versus Confidentiality December 8, - Sharon Young, Analyst Privacy and confidentiality are two concepts often mistaken to be the same thing.

Although Shankar had initially requested that the magazine print his autobiography, he later requested that his story not be published. The publishers held that it was their right to publish the autobiography while the IPS and IAS officers on the other hand claimed that Auto Shankar was trying to defame them and wanted to ban its publication.

The Supreme Court in this case, implicitly accepts the existence of a right to privacy under Indian tort law when. The question is how far the principles emerging from the United States and English decisions are relevant under our constitutional system.

So far as the freedom of press is concerned, it flows from the freedom of speech and expression guaranteed by Article 19 1 a. But the said right is subject to reasonable restrictions placed thereon by an existing law or a law made after the commencement of the Constitution in the interests of or in relation to the several matters set out therein. Decency and defamation are two of the grounds mentioned in clause 2.

This right has two aspects which are but two faces of the same coin 1 the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and 2 the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion.

The first aspect of this right must be said to have been violated where, for example, a person's name or likeness is used, without his consent, for advertising or non-advertising purposes or for that matter, his life story is written whether laudatory or otherwise and published without his consent as explained hereinafter. In recent times, however, this right has acquired a constitutional status. After a discussion of the various arguments presented by the parties a number of which are not relevant for the purposes of this paper , the Supreme Court laid down the following principles regarding freedom of the press and the right to privacy:.

It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.

Position may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others.

We are, however, of the opinion that in the interests of decency [Article 19 2 ] an exception must be carved out to this rule, viz. In the case of public officials, it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct relevant to the discharge of their official duties.

This is so even where the publication is based upon facts and statements which are not true, unless the official establishes that the publication was made by the defendant with reckless disregard for truth.

In such a case, it would be enough for the defendant member of the press or media to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public official enjoys the same protection as any other citizen, as explained in 1 and 2 above.

It needs no reiteration that judiciary, which is protected by the power to punish for contempt of court and Parliament and legislatures protected as their privileges are by Articles and respectively of the Constitution of India, represent exceptions to this rule.

The above principles have ruled the roost on the issue of privacy and freedom of the press under Indian law, with certain minimal additions. It has been held by the Delhi High Court that even though a claim for damages may be made under tort law for breach of privacy, the Court may even grant a pre-publication injunction to prevent a breach of privacy. Rajagopal were further clarified in the case of Indu Jain v. After a discussion of the various authorities and cases on the issue the Court summarized the principles relating to privacy and freedom of the press and applying those principles rejected the claim of the plaintiff.

However for the purposes of our discussion these principles are extremely useful, and have been listed below:. VI Public figures like public officials play an influential role in ordering society. They have access to mass media communication both to influence the policy and to counter-criticism of their views and activities.

The citizen has a legitimate and substantial interest in the conduct of such persons and the freedom of press extends to engaging in uninhibited debate about the involvement of public figures in public issues and events. VII Right to privacy that rests in an individual may be waived by him by express or implied consent or lost by a course of conduct which estops its assertions.

Such implication may be deduced from the conduct of the parties and the surrounding circumstances. VIII A public person or personage is one who by his standing, accomplishment, fame, mode of life or by adopting a profession or calling which gives the public a legitimate interest in his doings, affairs and character has so become a public figure and thereby relinquishes at least a part of his privacy.

IX The standard to be adopted for assessing as to whether the published material infracts the right to privacy of any individual is that of an ordinary man of common sense and prudence and not an out of ordinary or hyper-sensitive man. X Even though in this country, the freedom of press does not have presumptive priority as in some other jurisdictions including the United States of America, however the importance of a free media of communication to a healthy democracy has to receive sufficient importance and emphasis.

XI In evaluating a relief to be granted in respect of a complaint against infraction of the right to privacy, the court has to balance the rights of the persons complaining of infraction of right to privacy against freedom of press and the right of public to disclosure of newsworthy information.

Such consideration may entail the interest of the community and the court has to balance the proportionality of interfering with one right against the proportionality of impact by infraction of the other. XII The publication has to be judged as a whole and news items, advertisements and published matter cannot be read without the accompanying message that is purported to be conveyed to public.

Pre-publication censorship may not be countenanced in the scheme of the constitutional framework unless it is established that the publication has been made with reckless disregard for truth, publication shall not be normally prohibited. Maneka Gandhi.

Thus we see that the right to privacy in Indian law, even in the realm of tort law has had an inextricable connection with constitutional principles and constitutional cases have had a very huge impact on the development of this right in India. However a perusal of these cases shows that the right to privacy is available only insofar as information which is personal in nature, however in situations where the information is non-personal in nature the right to privacy may not be as useful and this is where, as we shall see below, the tort of breach of confidentiality comes in to fill the void.

While there have been a number of landmark cases in India on the issue of breach of confidence in a contractual or a statutory setting, these cases are not very relevant for a discussion on the tort of breach of confidentiality. This is not to say that the tort of breach of confidentiality is non-existent in Indian law, the Courts here have time and again accepted that there does exist such a tortuous remedy in certain situations.

We shall now try to examine the contours of this principle of torts by discussing some of the landmark cases on the topic. Indian Petro Group and Another , [32] the Delhi High Court considered a claim by a corporation seeking to prevent a news and media group from reporting its confidential negotiations and contracts with counterparties.

The claim was based upon both the right to privacy as well as the right to confidentiality but in this case the court, looking at the fact that the plaintiff was a corporation and also the type of information involved denied the claim on the right to privacy. However, it did allow the injunction claimed by the corporation based on the right to confidentiality.

Summarizing its discussion of the right to confidentiality, the Court stated thus:. It may be seen from the above discussion, that originally, the law recognized relationships- either through status marriage or arising from contract such as employment, contract for services etc as imposing duties of confidentiality.

The decision in Coco marked a shift, though imperceptibly, to a possibly wider area or zone. Douglas noted the paradigm shift in the perception, with the enactment of the Human Rights Act; even before that, in Attorney General 2 also called the Spycatcher case , or the Guardian case the Court acknowledged that there could be situations -where a third party likened to a passerby, coming across sensitive information, wafting from the top of a building, below being obliged to maintain confidentiality, having regard to the nature and sensitivity of the information…..

While discussing the factors that the Court would have to consider while deciding a claim based on the breach of confidentiality, the Delhi High Court relied upon and quoted from English judgments as follows:. Even while recognizing the wider nature of duty - in the light of the Human Rights Act, , and Articles 8 and 10 of the European Convention, it was cautioned that the court, in each case, where breach of confidentiality, is complained, and even found- has to engage in a balancing process; the factors to be weighed while doing so, were reflected in A v.

B Plc [] QB ; the latest judgment in H. Prince of Wales indicates that the court would look at the kind of information, the nature of relationship, etc, and also consider proportionality, while weighing whether relief could be given:.

In applying the test of proportionality, the nature of the relationship that gives rise to the duty of confidentiality may be important. Holding that the principles discussed in the English cases given in the context of individual rights of confidentiality would also hold good in the case of corporations, the Court held that:. Though the reported cases, discussed above, all dealt with individual right, to confidentiality of private information Duchess of Argyll ; Frazer ; Douglas ; Campbell and H.

Prince of Wales yet, the formulations consciously approved in the Guardian , and Campbell , embrace a wider zone of confidentiality, that can possibly be asserted. For instance, professional records of doctors regarding treatment of patients, ailments of individuals, particulars, statements of witnesses deposing in investigations into certain types of crimes, particulars of even accused who are facing investigative processes, details victims of heinous assaults and crimes, etc, may, be construed as confidential information, which, if revealed, may have untoward consequences, casting a corresponding duty on the person who gets such information - either through effort, or unwittingly, not to reveal it.

Similarly, in the cases of corporations and businesses, there could be legitimate concerns about its internal processes and trade secrets, marketing strategies which are in their nascent stages, pricing policies and so on, which, if prematurely made public, could result in irreversible, and unknown commercial consequences.

However, what should be the approach of the court when the aggrieved party approaches it for relief, would depend on the facts of each case, the nature of the information, the corresponding content of the duty, and the balancing exercise to be carried out.

It is held, therefore, that even though the plaintiff cannot rely on privacy, its suit is maintainable, as it can assert confidentiality in its information.

Apart from privacy, the law of confidentiality has been used in cases where there has been a definite harm to one side but none of the other laws provide for any relief. This was the situation in the case of Zee Telefilms Limited v.

Sundial Communications Pvt Ltd , [33] where a company which developed television and media programming had discussed their concept of a new show with a network during negotiations which could not be finalized.

The network however subsequently tried to start a new show which was based on the same concept and idea as the one presented by the plaintiff company. The plaintiff sued the network, inter alia on a claim for breach of confidential information and asked that the network be prevented from airing its show. In this case the plaintiff's claim based on copyright was rejected because copyright only subsists on the expression of an idea and not the idea itself, therefore the tort of breach of confidentiality had to be resorted to in order to give relief to the plaintiffs.

What is it? It is the right to be let alone. It is an agreement between the persons standing in fiduciary to maintain the secrecy of sensitive information and documents. Concept Limits the access of the public.

Prevents information and documents from unauthorized access. Applies to Individual Information Obligatory No, it is the personal choice of an individual Yes, when the information is professional and legal. Disallowed Everyone is disallowed from involving the personal affairs of an individual. Only unauthorized persons are disallowed from using the information.

Privacy is the state when an individual is free from public interruption and intrusion. It is the right of every individual to be left alone in his personal matters because everybody has his personal life. He can draw a boundary on the access of his information from the use of others. Moreover, it is a human tendency to hide certain facts about himself or else people will use them against him.

A good example of Internet privacy is here; you can set privacy on your social networking site account to limit the access of your personal stuff like who can see your stuff, profile picture, photos etc.