The value of the words ‘Private and Confidential’ in a legal sense depends on the context in which they are used. Often these words are written on correspondence merely to emphasise that the intended recipient must open the letter, rather than someone else. For example, you may not want a family member or colleague opening a communication from your doctor. In other instances the words can impose a legal duty on you to manage the communication in a particular way.
Generally speaking, you don’t have a duty to keep information confidential. This is so, even if you promise not to tell anyone. The same applies if you request someone else to maintain the confidentiality of information you disclose to them. You cannot impose a confidentiality obligation on someone ‘unilaterally’ just by asking them.
However, there are legal means by which you can agree to maintain the confidentiality of information. The most common is by entering into a confidentiality agreement. As with all legally binding agreements, either both parties must provide something of value to the other, or the agreement needs to be recorded in the form of a ‘deed’.
In the commercial context, a common form of confidentiality agreement is a Non-Disclosure Agreement (or ‘NDA’). Parties will often enter an NDA prior to embarking on a course of commercial negotiations. The NDA will require you to deal with confidential information in certain limited ways. For example, the NDA may require you to only use the confidential information for the purposes of your dealings with the other party. If the NDA is ‘mutual’ then if you disclose information to the other party, they are obliged to respect and maintain the confidentiality of your information. If either party breaches the confidentiality of the other party, then the innocent party has the ability to sue the other party for breach of contract, and possibly collect compensation in the form of damages.
Furthermore, a confidentiality agreement can impose legal obligations on you with respect to how you deal with information that may in fact not be confidential, or which may later lose its confidentiality. This is because the rights and obligations are created by the agreement and are governed by contract law, rather than by the ‘confidential’ nature of the information.
If you would like to protect information that you are disclosing to another party in the context of a commercial dealing, then call us to discuss putting in place an effective NDA.
Duty of confidentiality
Some relationships impose a duty of confidentiality. For example, employees often sign employment agreements in which they agree to keep certain information they are exposed to in the workplace confidential, such as pricing, client contact information, intellectual property or supplier information. However, even in the absence of such an agreement, a ‘duty of confidentiality’ is also imposed by the common law as a result of the nature of the employment relationship, (this being part of the broader duty of fidelity towards the employer). Depending on where you are based, this obligation can be imposed by legislation as well as the common law.
There are other relationships where a duty to maintain the confidentiality of certain information is imposed, such as doctor and patient, and lawyer and client. These requirements arise out of the law of equity and the very special ‘fiduciary’ nature of the relationship.
How you manage ‘Private and Confidential’ information may also be regulated by privacy laws. These laws regulate the handling of personal information about individuals, that is, what can and cannot be done with someone’s personal information. For example, the Privacy Act 1988 (Cth) and the Australian Privacy Principles govern the way public sector and private sector organisations of a certain size must manage an individual’s private data.
Legal Professional Privilege
The words ‘Private and Confidential’ do not prevent documents marked this way from being used as evidence in court, or for the purposes of litigation. Communications marked this way between a patient and doctor, or between a client and accountant, or an informant and journalist, can still be the subject of a court summons.
The only communications that cannot be required to be presented before a court are those ‘private and confidential’ documents that are subject to Legal Professional Privilege (or LPP). Legal Professional Privilege attaches itself to all communications that are made between a client and their lawyer for the (dominant) purposes of giving or receiving legal advice or in contemplation of litigation. These documents are often marked ‘Subject to Legal Professional Privilege’.
‘Legal professional privilege’ would be better described as ‘client legal privilege‘. This is because it exists to protect the client, and it belongs to the client. It is a right that enables a client to talk freely with their lawyer and receive advice about important rights and freedoms. It does not protect the lawyer, and the lawyer is not able to deal with the benefit of this privilege other than at the direction of the client. Government departments, such as the Tax Office, really dislike LPP, because it allows clients to seek advice from lawyers that the government department cannot see. They are trying to take this fundamental right away from citizens by characterising it as a ‘privilege’ for lawyers, (and of course, no one wants to defend lawyers!).
Client legal privilege can be lost either through an express waiver by the client (that is, deliberately) or through an implied waiver by the client (that is, when the client does something that is inconsistent with the maintenance of the confidentiality that the privilege protects, sometimes inadvertently). For that reason, care should always be taken when communicating advice you have received from your lawyer to family members, friends, and other advisers. Once lost, this privilege attaching to the communication cannot be reinstated – you can then be forced to disclose the communication to a court.
Do not assume that because you have marked something ‘Private and Confidential’ that it will remain that way. Conversely, do not assume because you have received a document marked ‘Private and Confidential’ that you cannot use that information as you see fit. Context is king.
Drew Craven RTP® | ABRT Board Member
Andreyev Lawyers | Adelaide | Sydney