BREACH OF CONFIDENTIALITY

by

BREACH OF CONFIDENTIALITY


DOES IT MATTER?


AUTHOR: AKRITI SHARMA,
1st year B.A. LL.B.( Hons.),
NATIONAL LAW UNIVERSITY, NAGPUR
BREACH OF CONFIDENTIALITY
BREACH OF CONFIDENTIALITY



    INTRODUCTION

    In this project, I will ponder on the subject of confidentiality. What is confidentiality? How is it important in one’s life. What is the difference between confidentiality and privacy? There is much information which needs to be kept secret and cannot be revealed to any random person. And if it revealed there may be the misuse of it which can harm you. There is much sensitive information you have to care for it. I suppose you have any confidential information in your gadget like mobile or laptop and if that stolen then also it will amount to a breach of confidentiality.
    Duty of confidentiality can arise from a contract or common law. Confidentiality has changed over the years it is expanded. Confidentiality arises from contract and also from non-disclosure agreements. In breach of confidence note that there should be a duty of confidence and unauthorized use of information should be there. There are many rules for information to be confident like it should be ethical, not trivial, not restricted etc. for example many times we read email and read below that this mail is confidential, but it will be confidential only when it has ethical and valuable information which cannot be revealed to everyone.
    In confidence, you need one person on whom you can trust and assure that your information will not go out. In this project, I will cover how confidentiality plays a role in different fields like in doctor/patient relationship, attorney/lawyer relationship and corporates confidentiality. And how confidentiality and privacy differ in their aspects. To be private is an individual choice but in confidentiality, more than one person come in the picture. Statues that govern breach of confidence. Most breaches are unintentional we do and we didn’t even recognize.
    Confidentiality applies only to individuals and to the whole group of people and if you want to get medical information you can only disclose your family healthy lineage. Constituents of confidentiality. What are reasons in which disclosure of information will not breach of confidence and how is consent important in confidence that if there will be breach then no infringement. If you have any venereal disease and hospital reveal there be a breach and is your fundamental right infringed. If there are a large section of the group involved then there will no confidentiality and you have to make the disclosure.
    In lawyers and cl
    ients’ confidentiality lawyers are not allowed to present himself/herself as a witness against his/her client because it will be confidence. But their many conditions in which lawyers can disclose the facts. Corporates’ confidentiality what all does directors need to maintain and what should be the confidentiality policies. What are the consequences if there is a breach? What is the law’s perspective towards BOC? What are the duties that common law countries should perform to maintain the people as well as places’ confidentiality? What is the scope of the law and what you should do to protect yourself?

    ABBREVIATIONS USED

    1. BOC – Breach of Confidentiality
    2. I.R.S – Internal Revenue service
    3. NCDRC- National Consumer Dispute Redressal Commission
    4. SC – Supreme Court

    DEFINITION OF BREACH?

    Breach in law means to break whether it is law, promises agreement, relationship. It is also the failure of any person not performing any act. The breach is derived from the word ‘brecan’ which means “to break”.

    CONFIDENTIAL/CONFIDENTIALITY?

    Confidential means something which is “intended to be secret” it can’t be open to all, we can’t reveal it to all the people. It is entrusted with private or restricted information.
    Confidentiality means the state of keeping something private or secret we usually confuse the words confidentiality and privacy.

    DIFFERENCE BETWEEN CONFIDENTIALITY AND PRIVACY?

    Privacy is related to the person. Every person has the right to be private in her personal space. These private things are not meant to be shared, there is no public interference. To remain private is a personal choice. Privacy is maintained by an individual. “The most general and common view of privacy conveys notions of withdrawal, seclusion, secrecy, or of being kept away from public view, but with no pejorative overtones.”[1]
    Confidentiality is only of information and when two persons know any information that they have to keep it confidential until the person whose information is it allows you. Confidentiality of information is legal and professional. Confidentiality needs to be maintained by others.

    BASIS OF CONFIDENCE INFORMATION

    1. The information has the necessary quality of confidence
    • It should be inaccessible to the public
    • Worth protecting, not trivial
    1. Information conveyed in the circumstances importing obligation to confidence
    • Relationship of the party (employment, doctor/patient, lawyer/client, advisor/disciple etc.) that there is a duty.
    • Notice of confidentiality- If one of the parties is saying that something has to be kept confidential.

     BREACH OF CONFIDENTIALITY?

    Breach of confidentiality (BOC) means when one person reveals the data or information of others, without that person’s permission or any person reveals data of any company is known as a breach of confidentiality. Breach of confidentiality in English law, allows the person to claim compensation when their confidential is a breach. It is civil. The law on the breach of confidentiality was developed by The Human Rights Act 1998, BOC law applies to private bodies as well as public ones.[2]

    TYPES OF CONFIDENTIALITY:

    1.  DOCTORS – PATIENTS CONFIDENTIALITY
                In medical confidentiality policy, the doctor or nurse can’t breach the confidentiality of their patient. There are many things that patients tell to his doctor and believe that this information will not be revealed by the doctor to anyone and will be used for the benefit of the patient and if the doctor gets that information it will be easier for them to treat the patient. They can’t talk about their patients. If anything like this happens, then there will be a violation of HIPPA (Health insurance probability and accountability act of 1996). And you have to face major consequences.
                What Is Covered under Doctor-Patient Confidentiality?
                Confidentiality is not only that hiding something from the third person but also not showing anything to him. In doctors and patient confidentiality if doctors had examined their patient then they are not allowed to show any type of reports, X-rays to the third person. And this applies not only to doctors but also applies to the professional staff of hospitals.
                What Constitutes a Breach of Confidentiality?
                Patients confidentiality is protected under state law and if there is breach state will protect it. A breach occurs when patient’s private information is exposed by a doctor to the other party because of which he may get harm and his privacy is infringed and get encroach by another person to whom he doesn’t want to reveal his problem. And if his confidentiality is breached then there will be malpractice which has to be dealt with by law.
    How Long Does Doctor-Patient Confidentiality Last?
    Doctor and patient confidentiality last even after the patient stopped seeing the doctor and also after the death of the patient. Because the right to privacy still exist even after the death of the patient and though he stopped seeking the doctor.
                But in some cases, doctors can disclosure the patients’ confidentiality
    1. When there is the protection of large people: – when a large section of people can be affected by a patient and it may harm them ,and in this case, the doctor can reveal the information.
    2. Disclosure with consent: – there cannot be any breach of the patient himself/herself waive his right to be confidential by consent from the patient.t doctors can breach the patient’s confidential. But doctors should have some proof from which they can prove that the consent was given by the patient.
    3. Disclosure required by law: – there will no breach if the breach is procedure established by law and law in some case what that information to give their decision. As it is an act of statue.
    iv)Advice by doctor or physician: – If there is a piece of advice by any doctor then it is not considered as confidential. As it is merely advice and not an examination but if there is examination and proper tests have been conducted and these are get revealed then there will be a breach of confidentiality. Right to confidentiality and right to privacy can be breached in certain cases.
    In the judgement, the court said that there are some ethics that doctor should follow and these ethics have legal effect. But there is an exception to these cases, “the Medical Council of India with the previous sanction of the Central Government under Section- 22A read with Section-33(m) of the Indian Medical Council (Amendment Act) 1964. The code carves out an exception that doctor can disclose information for the public interest.” This is an exception, the court held that doctor can breach it if there is any harm to the public at large.
    “The judgment deals with the conflict between two fundamental rights and issue were:
    • Right to privacy as an extension to the right to life under article 21.
    • Right of the fianceé to a healthy life as enshrined under Article 21.
    • Whether respondents were guilty to violate their duty of care?
      Discussing all these issues the Supreme Court in the present judgement court held that every right comes with a duty.” Therefore, if there is the interest of the public at large it will amount to any breach. Hence, relying on Code of Medical Ethics as an exception to the rule of confidentiality, the court held that in certain cases where specific people might be endangered if the information is not disclosed, the doctor can disclose the information. Right to confidentiality is not absolute, it can be breached in the cases in which the third party is involved ,and in these cases, the other party right will be overruled. Also, appellant right to get married is not breached as if another party still want so he/she can marry but with consent. But the court said that HIV/AIDS patient right to marry has been suspended until they are cured and the reasoning given by the court for this was that another spouse has also right to health and life, and that’s why the venereal disease is one of the grounds to give divorce.
      Mr. X v. Hospital Z CASE
          In present case names have not been disclosed as in certain cases court is bound to not to disclose the name of the parties as they may face criticism by the society. According to Section- 34 of the HIV and AIDS (Prevention and Control) Act, 2017[3] parties names should be kept anonymous. The facts of the case are the appellant X went to the hospital Z to transfuse his blood. When doctor took the sample of his blood and examined it he found to be HIV(+), the hospital authorities without X’s consent told the truth to A who was fiancée of X, due to which his marriage was called off and also he faced societal criticisms that he had to leave his workplace and place of residence. X approached the National Consumer Dispute Redressal Commission (NCDRC) for damages on account for breach of confidentiality he contended that hospital authorities must keep his suffering secret but they revealed it to the third party and breached my right to be private. But the appeal was dismissed by the NCDRC and it asked X to approach civil court. But he thought it will be right if he approaches SC, and he approached SC.
          Hence, what can be understood from the judgment is that the HIV AIDS patient’s right to marriage is not suspended. They can marry with the informed consent of
    the other spouse.
    1.   LAWYERS/ ATTORNEY – CLIENTS CONFIDENTIALITY
                The first question arises in our mind is who are lawyers “A lawyer or attorney is a person    who practices law, as an advocate, attorney, at law.” Who are clients? “A client of a professional person or organization is a person or company that receives a service from them in return for payment.”[4]
                Lawyers’ main function is to represent his/her client in the court. Whenever any client come to go to the lawyer, he expects that his information will not be revealed and whether he has done crime or not, lawyers will only argue to defend him. A fundamental principle between lawyer and client is trust, that client should have the trust that their lawyer will not reveal details about them. But when this information and facts are revealed by lawyers this is called breach. In rule 1.9 (c)(2)[5] it is given that a lawyer’s duty not to reveal information relating to the lawyer’s prior representation of a formal client. If the lawyer reveals this information then it will be harmful to them only as they will not get any cases and nobody will trust them. Because lawyers are known as a changer of society.
                Lawyers can only reveal information about their client when there is consent from the client. Because it creates a trust that gives confidence to the client and encourages the client to have healthy communication and properly recite his/her facts though he committed a crime. And these facts help lawyers to effectively present clients and avail them to legal aid.
                “The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness.”[6]
                BUT THE INFORMATION CAN BE REVEALED IN THE CASES LIKE
    1. If a person has committed a crime against the state.
    2. While the representation of a client, lawyers can disclose the facts to reach a proper solution.
    3. If the client is of any firm then lawyers can disclose the facts to the firm unless clients have told that lawyer doesn’t have to reveal this information.
    4. Lawyers also have to disclose the information if the public is involved, when a lawyer knows that client can harm public due to which there can be the death of anyone.
    5. Though lawyers cannot control the misconduct of criminal which is criminal and fraudulent he can withdraw his case and deny him/her to represent him/her in court.
    6. There are situations in which lawyers can reduce the loss of affected party by disclosing information to him. lawyers can reach confidentiality if he has to attain some legal advice related to that.
    7. Lawyers can disclose information in the cases when lawyer himself has involved complicity with the client in wrongdoing.
    8. If the lawyer is taking a hefty amount from the client then he has to prove it, that why this amount has been rendered.
       Confidentiality of information continues even after the result of the case has been decided,    otherwise, the lawyer can misuse this information.
    CORPORATES CONFIDENTIALITY
                Discussions at meetings, a board of directors must maintain confidentiality. If you serve on an association board of directors you need to act honestly and in good faith when it comes to confidentiality board information duty of confidentiality means that directors have a fiduciary obligation to keep information they acquire in their service confidential that is why directors aren’t permitted to speak about board matters or share board material with no directors, unless they have permission. Also, the director shouldn’t use confidential information for their own direct or indirect benefit failure to comply has the potential to put the board and the association at risk this obligation continues to apply even after a director has left.
                Board information which can’t be shared are board meetings’ agenda, details and discussions, reports and materials, members’ financial records, employee records etc. organization should have a confidential policy, which clarifies the expectations of directors and includes consequences be breached. As the director of the company, you are the insider of the company and you have all the information which you do not use for your gains. As director are obliged to maintain the secrecy and disclosure should not be made to the public. “the court fashioned a confidentiality order to prevent “dissemination of confidential business information to ‘curiosity seekers.” Corporates follow the policy that information should be maintained secret until and unless the policy gives you that freedom to reveal that information. Corporations designate a spokesperson to handle exclusively all publicity about the corporation and all media inquiries. Generally, there is a spokesperson appointed by every company to reveal all the information to the public but if this information is revealed by insiders then they may have a tough time because if you want to reveal the information do it honestly and maintain confidentiality but both cannot go together. Companies should pay attention that directors should not only reveal the company’s information but also company’s board information. In breach of confidentiality, it is not only directors but every person in the company.

     Consequences for Breach of Confidentiality[7]

    1. Termination- There is so much possibility that if employees breach the confidentiality they are very likely to get terminated and can face legal consequences. Employers are typically well within their legal rights to terminate individuals who breach the employer’s confidentiality.
    2. Lawsuits- Employers may also file the suit against the employee who breached the confidence and can take huge damages, by showing that due to employees’ mistake employer suffered lost.
    3. Criminal charges- Sometimes breach can also result in criminal charges like if employer shares any proprietary information and intellectual property. There can be a fine and jail term.
    4. Loss of reputation- A person can face socially ostracized and will not get a job in any other corporate if his/her name comes in cases like a breach of confidentiality as no company want the employer disloyal and cause them loss.
                In a judgment, eight circuit bench held that in breach of confidentiality damages will be awarded as such that it will indemnify the appellant, that it will bring back the appellant to the position it was before the damage was caused. If someone reveals a company’s confidentiality he/she will be liable under Non- disclosure agreement (NDA).
               HALLMARK CARDS, INC V. MURLEY CASE[8]
               The facts of the case are the defendant Janet Murley was the vice president of marketing in the Hallmark Cards, Inc (appellant), but when she was dismissed the company paid her the severance of $735,000, 18 months of paid The Consolidated Omnibus Budget Reconciliation Act (COBRA)[9] insurance, paid tax preparation for 2 years, and was given executive outplacement services. And in return to this, she entered into the contract with the company that she will not work in any other greeting cards industry for 18 months nor will disclose any confidential information of hallmark. After her agreement expired she was hired as a consultant in Recycled Paper Greetings (RPG) and paid $125,000. In exchange, she provided them with several confidential documents from Hallmark. When her new company was acquired by American Greetings, the disclosures were made known to Hallmark. When her computer was examined before that she deleted all the documents of Hallmark.
                IN VERDICT: Eight circuit bench held that “Put the party in as good of a position as he would have been absent the breach.” And the jury wrote a verdict in Hallmark’s favour for $860,000 – equal to her severance pay plus her consulting fee with RPG
                COMMON LAW DUTY OF CONFIDENCE
    1. If open to the public, there will be no duty of confidence.
    2. Duty of confidence likely if – Access to the area is restricted. There should be a necessary quality due to which circumstances are created. And second is that in some places photography is restricted as it can harm that and can be easily accessible. And if a warning is there and then also someone does photography then it will be a breach of confidence.
    3. The third party also have a duty of confidence if he/ she knows that information he/she possesses is confidential then duty will be present.
                Once information has entered the public domain, it cannot recover the quality of confidence to be protected again. When companies unlawfully disclosure or misuse secret information of other companies, court will award damages and loss suffered caused by the unlawful use. In addition, the discloser may well find itself restrained by an injunction from using the information in the future, on the basis that it should not be permitted to profit or benefit from its own wrongdoing.[10]

    CONCLUSION

         In today’s world, it is very important to secure your information and in securing this information law helps. If you are trusted with this information you must maintain this information secret until a person allows whose information is this. It is not only about your duty but also about ethics and your reputation. In doctor/patient confidentiality the doctor must maintain their patient information secret because your medical records say a lot about you it can be misused as we have seen in Mr X v. Hospital Z case that he was ostracized from society to his disease. In lawyers/clients’ confidentiality is a privilege to the client as it becomes easier to communicate its problems to the lawyers freely so that he may get all the legal immunities. And this confidence encourages the clients to tell the facts so that there will be effective representation in court. Also, make sure that lawyers may able to explain what laws apply in your situation. Corporate’ confidentiality directors, employees and all authorities owe responsibility no publicity should be done of information and no public access to the board meetings’ agendas, employees’ records and financial records etc. and no ‘insider trading’ should be there, if you are insider you will be knowing all the information of the company you cannot use it for your profit. And also, if you left the company you are not allowed to disclose the documents of the previous company as we have covered in the case Hallmark cards Inc v. Murley case. You may face criminal charges, criticisms etc. due to BOC and there are also many restricted areas you are not allowed to reveal. All the confidentialities even exist after the death of a patient, client and employee.


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    BIBLIOGRAPHY

    LIST OF BOOKS
    1. The Law of Confidentiality by Paul Stanley, 1st ed. 2008
    2. Gurry on Breach of Confidence by Francis Gurry, 1st ed. 1984
    3. Medical confidentiality and legal privilege by Jean McHale, 1st ed. 2004
    4. Confidentiality and Its Discontents: Dilemmas of Privacy in Psychotherapy by Jeffrey Berman and Paul W. Mosher, 1st ed. 2015
    Articles and journals
                        1.  Confidentiality, privacy and security of health information: Balancing interests by Valerie S. Prater
                        2. Limits of confidentiality: To disclose or not to disclose, by James W. Jones
                        3. Breach of Confidentiality and Various Legal Issues by Vibhor Verdhan
    List of websites
    https://www.ncbi.nlm.nih.gov, accessed on (8-10-19)
    http://naco.gov.in, New Delhi, the 21st April, 2017/Vaisakha 1, 1939 (Saka), accessed on (9-10-19)
    Henry Campbell Black, Black’s Law Dictionary, 5th ed., 1979), accessed on (3-10-19)
    https://www.americanbar.org, accessed on (6-09-19)
    https://www.upcounsel.com, accessed on (8-10-19)
    https://www.lexology.com, accessed on (5-09-19)
    https://www.investopedia.com, by Will Kenton, accessed on (9-10-19)
    https://www.theparalegalresource.com accessed on (8-1
    0-19)




    [1] https://www.ncbi.nlm.nih.gov, accessed on (8-10-19)
    [2] Breach of Confidentiality and Various Legal Issues, by Vibhor Verdhan
    [3] http://naco.gov.in, New Delhi, the 21st April, 2017/Vaisakha 1, 1939 (Saka), accessed on (9-10-19)
    [4]  Henry Campbell Black, Black’s Law Dictionary,  5th ed., 1979), accessed on (3-10-19)
    [5] https://www.americanbar.org, accessed on (6-09-19)
    [6] https://www.americanbar.org, accessed on (6-09-19)
    [7] https://www.upcounsel.com, accessed on (8-10-19)
    [8] https://www.lexology.com, accessed on (5-09-19)
    [9] https://www.investopedia.com, by Will Kenton, accessed on (9-10-19)
    [10] https://www.theparalegalresource.com accessed on (8-10-19)

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