Confidentiality obligations in contracts—a right to keep secret or a right to know, asks Sharon Mitchell
Is it worth bothering to draft a contractual obligation of confidentiality when equity will offer protection and legislation will limit protection?
Contractual obligations of confidentiality may not be as straightforward as they seem. The recent cases of R(on the application of Veolia ES Nottinghamshire Ltd) v Nottinghamshire County council [2010] All ER (D) 01 (Veolia) in the public law sector, and BBC v Harper Collins [2010] EWHC 2424 Ch D in private commercial relations, have illustrated the truth of this statement. Legislation also impinges on the operation of contractual and equitable confidentiality obligations; for example, s 77 of the Equality Act 2010 and the overarching influence of the European Convention on Human Rights (the Convention).
BBC confidential
In BBC v Harper Collins, the BBC sought an interim injunction to prevent a breach of confidentiality by the publication of the autobiography of Mr Ben Collins, which divulged his identity as “The Stig”, the mystery racing driver in
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