Responding to the financial abuse of older people - Loddon ...

(ii)
the transactions that go through the account;
(iii) the securities, if any, given in respect of the account; and
(iv) information which arises out of the banking relations of the bank
and the customer.
(e) It has been suggested that the rule in Tournier is more restrictive than the Privacy Act
in its approach to the disclosure of consumer credit information (although its
application is broader than the Privacy Act as it relates to all customer information). 71
We agree with this suggestion, as the rule in Tournier has fewer exceptions qualifying
the duty of non-disclosure than the qualifications available under the Privacy Act 72
and applies to all customer information, not just to personal information (as in the
case of the Privacy Act).
7.3 Equity
(a) The equitable action for breach of confidence is based upon the principle that the
person who has received information in confidence shall not take unfair advantage
of it (Seager v Copydex Ltd [1967] 1 WLR 923).
(b) The principle is that the court will ‘restrain the publication of confidential
information improperly or surreptitiously obtained or of information imparted
in confidence which ought not to be divulged’ (Lord Ashburton v Pape [1913]
2 Ch 469 at 475, per Swinfen Eady LJ).
(c) In Fraser v Evans [1969] 1 All ER 8, Lord Denning made the following comments
in respect of the jurisdiction of the court to restrain a breach of confidence:
‘These cases show that the court will, in a proper case, restrain the publication
of confidential information. The jurisdiction is based, not so much on property or
on contract, but rather on the duty to be of good faith. No person is permitted to
divulge to the world information which he has received in confidence, unless he
has just cause or excuse for doing so.’
(d) Megarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 set out the elements
which are necessary to succeed in an action for breach of the equitable obligation
of confidence:
(i)
(ii)
the information is of a confidential nature;
that information is communicated in circumstances importing an obligation
of confidence; and
(iii) there is an unauthorised use of that information (i.e. without the consent
of the person entitled to the confidence) to the detriment of the party who
communicated it.
(e) Regarding the first element, determining whether information is of a confidential
nature is a question of fact in each case. However, the courts have held that
information which is public or common knowledge, easily accessible from public
sources or which is trivial will, in the usual case, not be regarded as confidential.
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