What is a Breach of Confidence and How to Prove It

Last updated on March 31, 2022

man hiding confidential file behind his back

As the world becomes more digitalised, there is now a greater need to guard against the wrongful copying, abuse and exploitation of confidential information belonging to individuals or in the course of business/employment. Such wrongful use of information may have undesirable repercussions on your business operations, reputation, and/or your daily life.

If you find yourself in such a situation in Singapore, you may seek redress by filing a civil claim for a breach of confidence. This article will discuss:

What is a Breach of Confidence?

In Singapore, a breach of confidence can occur when confidential information given in confidence is disclosed to, or obtained by, someone who is unauthorised to receive such information.

Confidential information is essentially information that is not publicly known. Such pieces of information include passwords, trade secrets and business emails, as well as the personal data of individuals and third-parties.

For example, an ex-employee may have committed a breach of confidence if he/she divulges confidential information to his/her new employer, such as client lists or pricing information obtained from his/her previous job. This is because the ex-employee may not have been authorised to disclose such information, and such disclosure could compromise the previous company’s operations and profits.

A breach of confidence can also happen when data is stolen due to inadequate cybersecurity awareness or measures. For example, a person may have fallen victim to a phishing email scam, or unintentionally installed sophisticated spyware on his/her computer after visiting an unsafe website.

How Can a Breach of Confidence be Proved in Singapore?

A breach of confidence is presumed if you, the claimant, can prove the following two requirements:

1. The information in question had the necessary quality of confidence to it

Information possesses the necessary quality of confidence if it is relatively secret or inaccessible to the public as compared to information already in the public domain.

For example, you may have to show that the information in question is an integral part of your business operations, privy only to employees, and is not meant for dissemination.

2. The information in question was imparted in circumstances importing an obligation of confidence

You will have to show that the defendant, the party allegedly in breach, was under a duty to not make public or known to a third-party the information he/she obtained.

A clear instance where an obligation of confidence can be found would be where a non-disclosure agreement has been signed. Such an agreement obliges the parties to keep the information in question confidential.

However, the courts have stated that equitable obligations of confidence may still be found in instances where there is no contractual relationship between the parties. In other words, even though there was no contract between the parties that expressly stated that the defendant was to keep the information confidential, the defendant should still be expected to do so to avoid prejudicing the other party.

If a reasonable person in the defendant’s position would have understood that information was being given to him in confidence, then the defendant would be bound by an equitable obligation of confidence. For example, you may have provided information of commercial value to the defendant during contract negotiations that eventually fell through. In such a situation, an equitable obligation of confidence is imposed on the defendant because he/she would be reasonably expected to not divulge the information he/she received.

A breach of confidence can also be found where the information had been accessed or acquired without your knowledge or consent, such as where data is stolen as mentioned above.

Are There Any Defences to the Claim of a Breach of Confidence?

Once the aforementioned elements have been shown, it is then for the defendant to prove that his/her conscience had been unaffected in obtaining/disclosing the confidential information.

In other words, the defendant has to show that he/she had a clear conscience, or was not blameworthy in the receipt and/or disclosure of the information in question. If the defendant is successful in doing so, he/she would not be found to be in breach of confidence.

If the defendant is presumed to have committed a breach of confidence by receiving or obtaining information

If the defendant obtained the confidential information innocently, then his/her conscience will not be impacted whatsoever when receiving it. This displaces the presumption of an action for a breach of confidence.

For instance, if you have voluntarily disclosed confidential information to the defendant, his/her conscience will not be unaffected by the mere receipt of such information. If the defendant received an unsolicited confidential email sent by you accidentally, he/she is likely able to displace the presumption as well.

However, if the defendant, despite being not at fault when initially obtaining the confidential information, proceeds to use it without a valid reason, he/she may attract liability for breach of confidence.

Separately, if the defendant had deliberately accessed and acquired confidential information without your consent, it is unlikely that he/she will be able to prove that his/her conscience was unaffected when doing so. This is because he/she had knowingly obtained such information without authorisation, making him/her blameworthy.

If the defendant is presumed to have committed a breach of confidence by disclosing information

If the defendant believed that there had been a strong public interest in disclosing the information, he/she may also be able to displace liability for breach of confidence.

For example, if you had wanted information to be kept confidential to cover up some wrongdoing, the court will not uphold your right of confidentiality. The defendant would not be liable for a breach of confidence if he/she discloses the information to a party with a proper interest to receive it, such as the police.

Information required to mount your claim

Before you can launch legal action for a breach of confidence, you will typically require evidence of the breach, such as the identities of those who had requested your confidential information and those who had disclosed them. Failure to obtain such information can result in you not having sufficient evidence to bring your claim or successfully prove it in court.

In 2020, 22 death-row inmates believed that their private letters were being wrongly forwarded by prison officials to the Attorney-General Chambers (AGC). The letters had been meant only for their lawyers and families, not the AGC. There was a concern that the confidential information in the letters may provide the AGC with a legal advantage when prosecuting the inmates. Hence, some of the inmates wanted to sue AGC for a breach of confidence, among other matters.

The inmates applied for pre-action disclosure, which is usually sought to obtain more information before deciding whether to launch legal action. They wanted to know who had made the request to forward their letters and who responded to those requests. However, their application was dismissed as pre-action disclosures were not within the scope of disclosures provided for in the Government Proceedings Act.

Notwithstanding their inmates’ failure to obtain information on who had forwarded their letters, the Attorney-General later voluntarily disclosed that only 13 inmates had had their letters forwarded. As a result, only these 13 out of the 22 inmates decided to commence legal action against the AGC, with 6 of them seeking damages for breach of confidence.

How Can I File a Claim for a Breach of Confidence?

Prior to the commencement of legal action for a breach of confidence, you may wish to engage a law firm to act on your behalf. Your lawyer may first send a letter of demand requiring the other party to comply with your demands. For example, you may want to request for the other party to delete all copies of your confidential information, cease dissemination or even compensate you.

If the other party does not comply with your demands, your lawyer may advise that you commence legal proceedings. The claim for breach of confidence is commenced when an originating claim is filed and processed by the court. The claim is then served on the defendant.

A statement of claim will also usually be appended to the originating claim, containing material facts giving rise to your action for a breach of confidence as well as the relief that you are seeking. For example, the statement may contain details of how information was given in confidence, and how such confidence has been breached. You will have to provide such details to your lawyer who will draft the statement of claim.

You may also wish to file interlocutory applications to the court to further prepare for your own case. For example, you may file an application for an interlocutory injunction to prevent the defendant from circulating your confidential information, even before the case has been decided.

After you have settled all pre-trial matters and attended pre-trial conferences, the court will fix a date for the trial. If the court decides after the trial that the defendant has indeed committed a breach of confidence, you will be able to execute (or enforce) the orders in the judgment and obtain relief. Possible remedies will be discussed in the following section.

For more information on trial proceedings, you may refer to our article on civil litigation in Singapore.

What Happens If My Claim is Successful?

If you have succeeded in your claim for a breach of confidence, you will be able to obtain remedies, typically monetary compensation, from the defendant. You may also be awarded an injunction to prevent further dissemination or circulation of confidential information, or other remedies deemed appropriate by the court.

How Can a Lawyer Help in a Legal Action for a Breach of Confidence?

If confidential information you own has been wrongfully obtained or disclosed by someone in Singapore, it is recommended that you consult a lawyer about the possibility of filing a claim for a breach of confidence as soon as possible to avoid potentially undesirable consequences on your personal life or business.

The lawyer will be able to assess your case to advise on its merits. They may also be able to assist you in obtaining any legal remedies available to you, thereby reducing the extent of damage done by the breach.

Prevention is also better than cure. A lawyer can help reduce the risk of a breach of confidence by drafting any non-disclosure agreements or employment agreements that you may require. This helps to reduce the possibility of loopholes in the other party’s contractual confidentiality obligations. You will also be more likely to have contractual powers to respond appropriately and take legal action should any breaches of confidence occur.