The Black’s Law Dictionary defines confidentiality as secrecy or the state of having the dissemination of certain information restricted. Confidentiality may also refer to the relation between lawyer and client or guardian and ward, or between spouses, with regard to the trust that is placed in the one by the other. Breach of confidentiality, then, refers to the violation of this trust that has been placed in another in a fiduciary relationship, such as which exists between a doctor and his patient, or between spouses in a marriage, or between a lawyer and his clients or even between a bank and their customers. Breach of confidence has been seen as an independent tort in the United Kingdom, where the Law Commission in 1981 suggested that provisions be made for recognition of breach of confidentiality as a statutory tort. Any information received by either an explicit or implicit (through the fiduciary nature of the relationship) responsibility of maintaining confidence on the part of the recipient of such information, if disclosed to others may give rise to the tort of breach of confidentiality. Confidentiality is widely seen as an equitable principle and therefore the remedies may include primarily injunctions, but also damages for the pecuniary or mental losses suffered by the person whose confidence has been violated. In case the breach of confidence has profited the violator in monetary terms, these profits may also be taken into account while deciding damages. Injunction may also be used as a remedy to forestall the publication of information that may be detrimental to the person whose confidence is breached. No injunction will be granted in case the information that is ‘disclosed’ is already freely available in the public sphere e.g. if a statement is made in a courtroom the information is deemed to be in the public sphere, but if the same statement is made in camera its disclosure would be a breach of confidence. In India, there has been growing awareness about confidentiality in recent years. The tort of breach of confidentiality in India is based upon the violation of right to privacy. There is indeed a close, nebulous relationship between the violation of right to privacy and breach of confidence when the information in question is private personal information, such as information made available in the course of marital relationships. Ø Origin Of Right To Privacy In India The right to privacy is not a right guaranteed explicitly by the Constitution. This is not an unusual position of law. Indeed, the right to privacy is not granted as a specific constitutional right in any country in the world. It has been derived by the Supreme Court of India using the provisions of Articles 21, 19(1)(a) and 19(1)(g) given in the Constitution. The following cases are the seminal cases in determination of right of privacy in India.
Posted on: Tue, 30 Jul 2013 10:58:40 +0000
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