someone believes that their personal information is being unlawfully disclosed,
they may be able to rely upon the civil law of confidentiality.
If someone tells, or attempts to tell, anyone about an individual’s HIV
status without his or her consent after this had been confided in trust, then
this is likely to be a ‘breach of confidence’.
In such circumstances, the person concerned may be able to get an
injunction preventing disclosure and/or awarding damages. They may also be able
to get a declaration from the court stating that the information is
confidential (see Remedies).
In law, a duty of confidence arises “whenever the party subject to the
duty is in a situation where he knows or ought to know that the other person
can reasonably expect his privacy to be respected.”1
The law of confidence does not only apply to professional and business
relationships: the courts have been willing to protect highly personal
information disclosed without authority by spouses and friends. 2,3
The law of confidentiality does not provide absolute protection,
however, and is subject to three important ‘limiting principles’:4
It only applies to information which is actually confidential. Once
information enters the public domain, it is no longer protected by
It does not apply to useless or trivial information.
Although it is in the public interest that confidential information
should be protected, that public interest may sometimes be outweighed by
another public interest favouring disclosure. In such cases, the public
interest in confidentiality must be balanced against the public interest in
An example of the third ‘limiting principle’ arose in W v. Egdell,5 where
the Court of Appeal accepted that, in that particular case, it was in the
public interest for a doctor to disclose details of an individual's health
status to a third party. In that instance, a consultant had disclosed to the
Home Secretary his medical report on a patient who was seeking release from a
mental hospital. That medical report suggested that the patient may still have
been dangerous and questioned whether he should be released.
The general principle is, however, that it is in the public interest to
maintain confidentiality. Sometimes there are said to be competing public
interests - i.e., the public right to know, as opposed to the public's interest
in the maintenance of confidential information. This is best illustrated by the
case of X v. Y.6 In that case, a newspaper wished to disclose the names of
two HIV-positive doctors. The health authority sought a permanent injunction
preventing the paper from publishing the names. The judge, in allowing the
“I keep in the forefront of my mind the very important public interest
in freedom of the press. And I accept that there is some public interest in
knowing that which the defendants seek to publish. But in my judgement those
public interests are substantially outweighed when measured against the public
interest in relation to loyalty and confidentiality both generally and with
particular reference to AIDS patients' hospital records.”
A similar approach was taken in the more recent case of H (A
Healthcare Worker) v.
Associated Newspapers Ltd,7 where a dentist who
had been diagnosed as HIV-positive was granted an injunction preventing a
newspaper from publicly identifying either him or the health authority he
It would appear from such cases that there are three principles which
justify, in the public interest, the disclosure of confidential information.8 These are:
The disclosure is to be made only to those whom it is necessary to tell
so as to protect the public interest.
To justify the disclosure any risk must be real and not fanciful.
It may be that only a risk
involving physical safety of the public justifies disclosure.