Misuse of Private Information

Misuse of Private information is a Delict under Scottish law. It was previously known as Breach of confidence.

European Convention on Human Rights
Article 8 of the European Convention on Human Rights states:
 * Everyone has the right to respect for his private and family life, his home and his correspondence

Reasonable Expectation of Privacy

 * The question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.
 * Murray v Express Newspapers plc (2008)

This reasonable expectation covers a wide range of things, from sexual activity to activities not even in private - photographing a person doing their regular shopping could be breach of this expectation.

The tests set by the ECHR are detailed in Von Hannover (2005) v Germany and Von Hannover v Germany (no. 2) (2012) help shape when a breach of piracy is permitted
 * It must contribute to a debate of general interest
 * How well known is the person, and what is the subject of the report?
 * What was the person's prior conduct
 * What is the content, the form, and what were the consequences of the publications?
 * What were the circumstances of the photos being taken

In Duchess of Argyll v Duke of Argyll (1964) the immorality of one partner in marriage was found not to remove the expectation of privacy between a married couple.

Defences
In Campbell v MGN (2004) it was not a delict to publish facts that correct the statements of those made incorrectly. Naomi Campbell had claimed publicly that she was not a drug user, but was photographed at a Narcotics Anonymous meeting; the publication of this was found to be justified. A similar argument succeeded in Ferdinand v MGN (2011).

Sexual encounters are in themselves usually expected to be confidential, however in Godwin v News Group Newspapers (2011), publicing that the the head of the Royal Bank of Scotland had an affair with an employeee was found to be justified, although publishing the details of that affair was not.

As an economic delict
For a breach of confidence to be held, the information must:
 * Have a quality of confidence
 * Be imparted in circumstances that impart an obligation of confidence
 * The information must be used to the detriment of the communicator.

In Lord Advocate v Scotsman Publications (1988) the Lords ruled that an obligation to privacy of one person (in this case to the crown) does not prevent a third party publishing that information unless "it is in the public interest".

Trade secrets
Employees are expected to hold confidence during their employment, and keep protected any trade secrets of their employer.

What exactly a trade secret depends on the:
 * Nature of employment
 * Nature of the information
 * Whether confidentiality was impressed
 * and whether it can be separated from free to use information.

In Faccenda Chicken Ltd v Fowler (1987), several staff of Faccenda's were poached by Fowler to start a similar chicken delivery business. The staff brought with them knowledge of Faccenda's routes and sales which allowed them to pre-empt Faccenda's drivers. As the information of Faccenda's routes were widely known, and the confidentiality was never impressed upon the employees, no trade secrets were found to have been given.

In Bailey v Graham (AKA Levi Roots) (2011) Bailey alleged that "Levi Roots" had reused his recepie, but this was found not to be specific enough.

Confidential information imparted as a friend cannot then be used to write a expose/biography (McKennitt v Ash (2006)).

Defences
Discloseure may be permitted in when it is in the public interest. In ion Laboratories Ltd. v Evans and Others (1985). In this case the disclosure that a "Intoxicator"/Brethalyser device could result in false positives was held to be in the public interest.