©The Star (Used by permission)
ARTICLES OF LAW
By BHAG SINGH
If there is a breach of privacy, confidentiality or secrecy, there may not be a remedy.
PRIVACY, confidentiality and secrecy are words commonly encountered. In a way, they mean the same thing. Yet these words do not completely refer to one and the same thing at all times. There is a difference in the concept as well as the context in which the words are used. On some occasions, they are used in a legal sense and have legal implications, which can be serious.
On other occasions, some of these words are used to mean what they do not really say.
Confidential
According to the Oxford Advanced Learner’s Dictionary Of Current English, “confidential” means “meant to be kept secret” or “not told or shared with other people”.
PRIVACY, confidentiality and secrecy are words commonly encountered. In a way, they mean the same thing. Yet these words do not completely refer to one and the same thing at all times. There is a difference in the concept as well as the context in which the words are used. On some occasions, they are used in a legal sense and have legal implications, which can be serious.
On other occasions, some of these words are used to mean what they do not really say.
Confidential
According to the Oxford Advanced Learner’s Dictionary Of Current English, “confidential” means “meant to be kept secret” or “not told or shared with other people”.
So “confidential” appears to suggest “for your ears only” as opposed to a “secret”. The same dictionary says that “secret” means “known only by a few people or kept hidden from others” as in the case of “details of the proposal remaining secret”.
So “confidential” or “secret” may in its basic meaning not mean “for your ears alone” but also “for a number of ears”. Secretly can also mean “surreptiously” as when it is said someone secretly filmed the “acts of another” or recorded “the conversation of another”.
Of course, the term “confidential information” is more used in the context of business situations or employment relationships. Very often there is a confidentiality clause in an employment contract that seeks to restrain employees from disclosing confidential information to others.
This not only covers the period the person is in the employment of the employer but also after he has left the particular employment and is working elsewhere or involved in other business.
Failure to fulfil the obligations would amount to a contractual breach. But the extent to which what is regarded as confidential information can actually be so protected is very much a matter that needs to be carefully considered and provided for.
Any secret process or formula of the employer or information compiled for purposes of the business would be confidential information. However, this does not necessarily cover all the information that belongs to the employer. There must be a quality of secrecy about the information in addition to other features.
It must be remembered that an employee, whilst working for an employer, also acquires or adds to his knowledge and expertise. In the course of acquiring such knowledge and expertise, he may be exposed to information that are considered secret.
Such knowledge and exposure becomes part of the employee. He is entitled to make use of this wherever he goes because it is a part of him. Such knowledge and experiences cannot be separated from him when he leaves and takes up a new employment.
To illustrate this, if there is already in existence a list of customers which has been compiled by the employer and used in the course of business, its removal by an employee who leaves the employment and uses it, would be a breach.
But the law would not prevent an employee using his knowledge of the known sources to compile the list all over again in his new place of employment or a business if he chooses to start one. It may take time and effort, but it cannot be prevented.
Secrets
Otherwise there is the law relating to secrecy within the meaning of the Official Secrets Act 1972. The use of the word “secret” here is in a way a misnomer. This is because when one talks of “official secrets”, it refers in many situations to official documents rather than that the information is otherwise unavailable or unobtainable.
The Official Secrets Act 1972 also contains provisions which seek to prohibit disclosure of information and other details with regard to facilities that involve the country’s security.
At the same time, people look at secrecy from their own point of view. Whilst journalists and others may complain about restraints imposed by secrecy laws on their right to report, they can also be secretive about disclosing their own sources of information when this is asked for. Therefore, the need to be liberal or restrictive is sometimes dictated by the angle the subject is being looked at.
Privacy
The aforementioned dictionary describes privacy as the state of being alone and not watched or disturbed by other people. It also refers to the state of being free from public attention.
However, there is no law in our country to protect a person’s privacy just on the basis of it being private. So long as the other persons do not intrude into another person’s life physically, there is usually no wrong done.
If there is physical intrusion, then there would be room for action to be taken. This would be on the basis of existing principles of trespass to property or person.
A person’s privacy may be breached without any physical intrusion. This may be done by writing about him or publishing his photographs without his permission. Or it could be in relation to other activities carried on by him privately. In such a case, in as much as the person may not wish to have such content written or photographs published, no right to take action may exist.
A recognised wrong would only exist if what is published is defamatory. In other cases, there may be room to bring an action based on copyright infringement. If a person has facilities for his activities to be recorded and these recordings are then unlawfully removed and used, this would give rise to copyright infringement.
Thus the subject of privacy, confidentiality and secrecy has different aspects to it. In certain cases, it may be possible to take action on the basis of a breach. In other, privacy may be breached or confidentiality lost and secrets revealed with impunity.
So “confidential” or “secret” may in its basic meaning not mean “for your ears alone” but also “for a number of ears”. Secretly can also mean “surreptiously” as when it is said someone secretly filmed the “acts of another” or recorded “the conversation of another”.
Of course, the term “confidential information” is more used in the context of business situations or employment relationships. Very often there is a confidentiality clause in an employment contract that seeks to restrain employees from disclosing confidential information to others.
This not only covers the period the person is in the employment of the employer but also after he has left the particular employment and is working elsewhere or involved in other business.
Failure to fulfil the obligations would amount to a contractual breach. But the extent to which what is regarded as confidential information can actually be so protected is very much a matter that needs to be carefully considered and provided for.
Any secret process or formula of the employer or information compiled for purposes of the business would be confidential information. However, this does not necessarily cover all the information that belongs to the employer. There must be a quality of secrecy about the information in addition to other features.
It must be remembered that an employee, whilst working for an employer, also acquires or adds to his knowledge and expertise. In the course of acquiring such knowledge and expertise, he may be exposed to information that are considered secret.
Such knowledge and exposure becomes part of the employee. He is entitled to make use of this wherever he goes because it is a part of him. Such knowledge and experiences cannot be separated from him when he leaves and takes up a new employment.
To illustrate this, if there is already in existence a list of customers which has been compiled by the employer and used in the course of business, its removal by an employee who leaves the employment and uses it, would be a breach.
But the law would not prevent an employee using his knowledge of the known sources to compile the list all over again in his new place of employment or a business if he chooses to start one. It may take time and effort, but it cannot be prevented.
Secrets
Otherwise there is the law relating to secrecy within the meaning of the Official Secrets Act 1972. The use of the word “secret” here is in a way a misnomer. This is because when one talks of “official secrets”, it refers in many situations to official documents rather than that the information is otherwise unavailable or unobtainable.
The Official Secrets Act 1972 also contains provisions which seek to prohibit disclosure of information and other details with regard to facilities that involve the country’s security.
At the same time, people look at secrecy from their own point of view. Whilst journalists and others may complain about restraints imposed by secrecy laws on their right to report, they can also be secretive about disclosing their own sources of information when this is asked for. Therefore, the need to be liberal or restrictive is sometimes dictated by the angle the subject is being looked at.
Privacy
The aforementioned dictionary describes privacy as the state of being alone and not watched or disturbed by other people. It also refers to the state of being free from public attention.
However, there is no law in our country to protect a person’s privacy just on the basis of it being private. So long as the other persons do not intrude into another person’s life physically, there is usually no wrong done.
If there is physical intrusion, then there would be room for action to be taken. This would be on the basis of existing principles of trespass to property or person.
A person’s privacy may be breached without any physical intrusion. This may be done by writing about him or publishing his photographs without his permission. Or it could be in relation to other activities carried on by him privately. In such a case, in as much as the person may not wish to have such content written or photographs published, no right to take action may exist.
A recognised wrong would only exist if what is published is defamatory. In other cases, there may be room to bring an action based on copyright infringement. If a person has facilities for his activities to be recorded and these recordings are then unlawfully removed and used, this would give rise to copyright infringement.
Thus the subject of privacy, confidentiality and secrecy has different aspects to it. In certain cases, it may be possible to take action on the basis of a breach. In other, privacy may be breached or confidentiality lost and secrets revealed with impunity.