Breach of confidence and disclosures in the private interest: on the viability of importing a qualified privilege defence from defamation law

In the United Kingdom and in various parts of the Commonwealth, the cause of action known as breach of confidence is subject to a number of common law defences, the most significant of which is the public interest defence. Despite its open-ended nature, the application of the public interest defence has been confined by courts to a limited range of scenarios, and its current formulation lacks the breadth required to evaluate the admissibility of private values or ethical considerations that could justify the disclosure of confidential information. This article critically evaluates the limitations of the public interest defence and considers the feasibility of importing a ‘qualified privilege’ type defence from the tort of defamation to provide shelter from liability for unauthorised disclosures of confidential information that are justified by a legal, social or moral duty or interest of a private nature. A new defence of ‘disclosure in the private interest’, fashioned after the qualified privilege defence, would assist courts in balancing conflicting private values or duties when determining whether a breach of confidence can be justified in particular circumstances.