What Qualifies As A Breach of Confidentiality?Team
The word ‘confidentiality’ is often used in professional settings. For example, a doctor, therapist, or lawyer may have told you that everything said at an appointment or consultation would be protected by confidentiality. In some cases, an employer may advise you certain business information is confidential.
But what happens if the information is not actually kept confidential? When can you pursue legal action against someone for violating a duty of confidentiality? What can you sue for?
This article will explain what confidentiality is, who owes a duty of confidentiality, when there is a breach of confidence, and what you can do about a breach of confidence.
What Is Confidentiality?
Confidentiality is the practice of keeping sensitive and private information to yourself without disclosing or using it to someone else’s detriment. Confidentiality is important in situations where someone is in the vulnerable position of sharing information that is private and could be harmful to them if it were to be released, disclosed, or abused by the person receiving the information.
Depending on the context of a relationship, one person may owe another a legal duty of confidentiality. It is a duty to keep what you’re told secret unless there is a good reason to release that information.
Who Owes a Duty of Confidentiality?
Whether someone owes a duty of confidentiality will depend on a variety of factors, such as the degree of trust inherent to the relationship between two or more people, and how vulnerable the person confiding the information is to those receiving it.
This can be inherent in a relationship traditionally recognized as one where a duty of confidentiality is owed, such as doctor-patient, solicitor-client or those owed by certain employees to their employers.
Someone can also owe a duty of confidentiality pursuant to a written confidentiality agreement, which specifies what is considered confidential information and what the consequences may be for violating confidentiality.
The average person does not owe others a duty of confidentiality in any legal form. Even though you might want someone to keep something a secret, or you might tell them that certain information is confidential, that does then mean that person then owes you a duty of confidentiality.
An employer may require you to sign a confidentiality agreement to start working for them. Professionals like lawyers and doctors have an inherent ethical and legal duty to maintain confidentiality, as they ordinarily handle extremely sensitive information in the course of their duties for their clients.
Determining whether someone owes you a duty of confidentiality will depend largely on the facts of your case if you’re not the kind of professional the duty of confidentiality usually applies to.
What is a Breach of Confidence
If you have a confidentiality agreement in place with someone, they will be obligated not to share the specified information given to them with others without authorization. Similarly, professionals like doctors, lawyers, and therapists should be aware of what they can and cannot share about their clients, and they might make that clear to you before taking you on as a client.
Where you owe a duty of confidentiality to someone, sharing their confidential information with a third party without their consent may constitute a breach of confidence. In Ontario, you can hold someone legally liable for breach of confidence if you can prove the following:
- The information you conveyed was confidential.
- The information you conveyed was communicated in confidence.
- The information you conveyed was misused by the individual it was communicated to.
- The information was communicated to others to the detriment of the individual who originally communicated the information in confidence.
However, there are exceptions to the rules surrounding confidentiality depending on the facts of each individual case. For example, a lawyer may be ethically and legally obligated to disclose a client’s confidential information where they have a reasonable basis someone might harm themselves or others.
In all cases, you should quickly seek legal advice before disclosing any confidential information to ensure you do not unlawfully breach confidentiality.
What To Do If Someone Breaches Confidentiality
If you ever suspect someone has violated a duty of confidentiality they owe you, your first step should always be to gather all your proof and arrange a consultation with a legal professional to discuss your options.
For professionals with a duty of confidentiality, there are usually regulatory organizations who will investigate and discipline breaches of the duty of confidentiality. If a professional organization is available to file a complaint with, you can report the relevant professional’s breach of confidentiality.
Depending on your circumstances, you could also sue someone for damages and other remedies for breach of confidence. The legal dispute process usually starts with a demand letter laying out your legal claim against the other party to attempt a cost-efficient settlement. If the other party refuses to settle, the only option is to sue and try to resolve the matter as you move along the legal process.
If the lawsuit doesn’t settle before trial, a court may award economic or other damages flowing from the breach of confidence or order other remedies. A common remedy is an injunction requiring that a person refrains from further disclosing or abusing information released to them in confidence. You may also ask a court to grant an order requiring the other party to delete all traces of your confidential information. Each circumstance could require different remedies.
Where someone owes you a duty of confidentiality, they must avoid communicating your private information to others without authorization or using your private information entrusted to them to cause you harm.
In addition to reporting certain professionals for ethical violations, you can sue someone for breach of confidence to seek compensation and other remedies for the resulting harm you endured. You can start by negotiating and settling the matter outside of the court system, but you may be forced to take your case all the way to trial to achieve your desired result.
As every case turns on its own facts, you should always discuss your legal options with an experienced litigation lawyer to determine your rights. Determining whether someone breached confidentiality, and what remedies you should seek will depend on your unique circumstances.
If you have questions or concerns about a breach of confidence or an owed duty of confidence, please reach out to our experienced litigation team at Achkar Law. You can contact us by phone toll-free at 1 (800) 771-7882 or email us at [email protected], and we will be happy to assist.
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