Breach of Confidence and The Right to Privacy – The Progression of The Law and Modern Society
BY: AARON CHUNISINGH
AARON CHUNISINGH
Attorney-at-Law
Martin Anthony George & Company
Introduction
In the year 2024, technology has undeniably become a part of our everyday lives. Now, more than ever, information is easily shareable by the touch of a screen or the click of a button. Unfortunately, this ease of sharing information extends to that which may be classified as confidential or private information. In cases where confidential or private information is shared without the consent of the party who entrusted said information to the person sharing it, what then does the law prescribe?
In Trinidad and Tobago, there is no comprehensive legislation that governs the general public sharing confidential or private information. The Data Protection Act Ch. 22:04 is the only statue in place regarding the protection of personal information. The purpose of the Act is to protect the right of persons to privacy and to maintain personal information as private or personal. However, the Act has only been partially proclaimed and only a few of the provisions therein are currently enacted. Thus, there seems to be a gap in the law relating to the privacy of persons in Trinidad and Tobago. The common law has attempted to fill that gap through the application of the existing legal principles of Breach of Confidence and the Right to Privacy.
Breach of Confidence
Traditionally, for one to succeed in a claim for Breach of Confidence the requirements that must be met are that the information must have had the necessary quality of confidence, so as not to be public property or public knowledge; there must have been an obligation of confidence in the circumstances under which the information was imparted; and there must have been an unauthorized use of that information by the party communicating it externally and to the detriment of the confider.[1]
Furthermore, there is a duty of confidence which arises in certain circumstances. Firstly, where the party entrusted with confidential information has notice that the information is confidential or has agreed to same being confidential, such as by an expressed or implied contractual term. In such a case the duty of confidence arises as a result of the relationship between a confidant and the person to whom the confidential information relates. However, the duty of confidence can still arise where there is no obvious relationship between the parties. Equity provides for a duty of confidence in instances where confidential information is shared by the confidant to a third party, or even in instances where a third party becomes aware of the confidential information by other means.
In determining what is ‘confidential information’, the Courts consider whether a reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence.
In recent times, the ability of the law of Breach of Confidence to keep up with the ever-evolving circumstances of modern society has been tested. One such phase of evolution that has exposed the Law’s weaknesses and highlighted its need for progression, is the incorporation of technology into our daily lives. Pictures, videos and text messages are some modern pieces of information which most persons consider to be confidential, especially within private, intimate or sexual relationships. Sharing these types of information has become easy and because of this, they can be rapidly and widely spread and can quickly go “viral”. The unauthorized sharing of such confidential information by a confidant can lead to irreparable damage being done to the person to whom the confidential information relates.
The locus classicus case of Ho v Simmons CV1949 of 2014 was the first of its kind within this jurisdiction, in that it concerned the Defendant’s distribution without the consent of the Claimant, of ‘intimate photos’ taken in private. Justice Seepersad noted in his judgment that the common law concept of Breach of Confidence had, prior to that case, never been applied in such circumstances. As such, the learned Judge relied heavily on cases from outside of this jurisdiction in coming to his decision. What exacerbated the situation was that the Defendant, a famous international cricketer, shared the Claimant’s intimate photos publicly, consequent on the break-up of their relationship and this matter in fact became the first High Court case in this jurisdiction, of ”Revenge Porn”.
One case which was relied on by JusticeSeepersad, is the Australian case of Giller v Procopets [2004] VSC 113. This case had similar factual circumstances where the claimant and the defendant were previously in a relationship and the defendant showed video recordings of their sexual activities to close friends of the claimant. In that case the Court found that there was a confidential relationship between the parties that was breached by the defendant sharing the confidential information to third parties.
The position in Australia is that photos of that nature are confidential and a confidential relationship exists between parties engaging in sexual or intimate acts. This position was adopted in Trinidad and Tobago where the sharing of sexually explicit photos was deemed to be a breach of confidentiality. It has been stated that uploading of such photos to the internet without consent of the person depicted is not to be condoned in a civilized society and that the possession and dissemination of such material can be used to harm the person depicted through blackmail, intimidation or revenge. It is because of this threat of harm to persons that the stance is now that confidential information of this nature must be protected by the law and as such, the law has recognized the need for existing legal principles to cover modern forms of breaches of confidential information.
Therefore, the position of the Courts of Trinidad and Tobago is that that the law must evolve to keep pace with modern circumstances. As new means of communication constantly arise, new means of sharing confidential information also arise. New means such as the sharing of photos and videos on social media or uploading them to the internet were not in the minds of the Court when initially formulating precedents regarding Breach of Confidence. While the Legislation may not specifically cover these breaches of confidence where such information is shared without consent, there is indeed a readiness of the Court to mould the existing legal principles to account for new forms of sharing confidential information. It was also considered that such information can be intentionally used to cause damage to persons and thus it is imperative that the Court continues to take a progressive approach in mitigating and preventing such damage being done.
The Right to Privacy
Section 4(c) of the Constitution of Trinidad and Tobago grants the right of the individual to respect for his private and family life.
In Jason Jones v The Attorney General of Trinidad and Tobago CV2017-00720, Justice Devindra Rampersad quoted the dicta in Puttaswamy v Union of India Writ Petition (Civil) No 494 of 2012, to define the reach of the Constitutional right of privacy. In that case it was held that, “Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity.”
Furthermore, the learned judge also stated that privacy was inextricably linked to human dignity, which is, “Attached to that right is the concept of autonomy and the right of an individual to make decisions for herself/himself without any unreasonable intervention by the State.”
Thus, the position is that the Section 4(c) right to private and family life protects the individual dignity and autonomy of persons to have their own thoughts and make their own decisions without interference by the State.
Notwithstanding this, it is established that there is no absolute Right to Privacy within the laws of Trinidad and Tobago. To explain this nuanced conundrum, one has to look at the strict definition of Privacy as being the state of being alone, or the right to be left alone and to be able to keep one’s personal matters and relationships secret.
This stance is supported by the Court where it has been held that there can be no action on the failure to respect the privacy of a person.[2] Breach of privacy per se, is therefore not a sustainable cause of action in Trinidad and Tobago. Furthermore, the Courts of England mirror that position. It has been established that there is no English domestic law of a tort of invasion of privacy and the English Court also does not recognize a cause of action based on a person’s right to privacy per se.[3]
Accordingly, it has been acknowledged that there is a shortsightedness of the law in dealing with the privacy of persons. As such, the common law principle of Breach of Confidence has been shaped and applied in a manner so as to reflect modern societal demands. In Ho (supra), the learned judge stated that, “The law has to be dynamic and has to develop in such a way to ensure that it remains relevant and it must be recognized that there is an obligation of conscience which requires that videos, photographs and/or recordings that capture private intimate relations, should be clothed with a quality of confidentiality.”
The Court took an interesting approach in applying an “obligation of conscience” to the specific information considered as private, as it seemed to borrow a moral argument in pursuance of developing a modern approach to the law regarding privacy. There is constant discussion regarding the law and morality. However, it is not a unique concept to fuse the two when needed and indeed a person’s right to privacy must be seen as one of those instances in which the law adopts moral principles. While in Ho -v- Simmons supra, the Court did not find for the Claimant on the right to privacy, it was considered as a salient point that the “infinite reach” of social media has put the privacy of persons at risk and that there is now a need for statue to protect the same.
Conclusion
While in Trinidad and Tobago there is currently no Right to Privacy per se, and the advent of modern technology in the form of social media, messaging applications, videos and pictures continues to threaten the privacy of individuals, the Court has taken steps towards ensuring that confidential and private information has protection in the law. The principle of Breach of Confidence has already been established and applied in cases where information falls within what the Court sees as ‘confidential’. However, by the application of the principle of Breach of Confidence in ways that seek to encompass those forms of information that have recently been adopted into society, a progressive approach is now underway towards fully protecting the privacy of individuals. The position of the Court that steps must be taken to enact statutory protection of said privacy is one that should be supported and pushed.
In the interim, it has been established that the principle of Breach of Confidence is to be applied in such a manner so as to include new and modern forms of information. However, the Court is not limitless in its powers, and as technology continues to rapidly evolve, forms of information may arise which the existing legal principles cannot be moulded to cover. Thus, it must be reiterated that the only way to ensure the privacy of persons be absolutely protected, is the enactment of Legislation which considers the circumstances of modern society and the use of technology for the dissemination of information.
[1] Saltman Engineering Co. Ltd. v. Campbell Engineering Co Ltd (1948) 65 RPC 203
[2] Ho v Simmons CV1949 of 2014
[3] Wainwright v Home Office [2004] 2 AC 406
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Breach of Confidence and The Right to Privacy – The Progression of The Law and Modern Society