Introduction

The equitable obligation of confidence is used to protect information from unauthorised misuse or exploitation by others. The action now has two significant aspects; it is traditionally used to protect commercially valuable information such as trade secrets, and it is increasingly used to protect personally private information. Whether the same considerations apply to these two aspects of the action is an open question.

Though the obligation of confidence is one of the oldest in equitable jurisdiction, in many ways it is also equity's newest area of interest, and has recently been called upon to protect interests previously thought to be ineffectively protected.

The long hiatus between the action’s origins and its current development is partly due to the unusual position confidentiality has occupied. Whereas many equitable responsibilities, such as trust or fiduciary obligations, have no direct common law counterparts, confidentiality can be regulated by regimes other than equity. Up until the mid-twentieth century most cases concerning the equitable obligation of confidence also involved a breach of an obligation of confidence not sourced in equity. For this reason, the courts were not particularly rigorous in their discussions of the doctrine. In older cases it can be hard to discern whether courts are referring to an equitable obligation, a contractual obligation, or perhaps both. This is particularly noticeable in respect of remedies.