Diseño de un Mapa Estratégico de Control para la empresa

The historical relationship between the equitable action of breach of confidence and the misuse of private information action provided a ground to preclude the falsity from the scope of privacy. It is undoubted that each action ostensibly serves different and distinct purposes; the equitable action of breach of confidence seeks to protect information based on relationships of trust and confidence, whereas MOPI seeks to protect the individual's dignity, autonomy and control over her private information. 422 _{Such differences, however, should not}

preclude the law from being applied and developed consistently and coherently. 423 _{Based on}

422 _{Tanya Aplin, ‘the Relationship between Breach of Confidence and the ‘Tort of Misuse of Private Information’} (2007) 18 King's Law Journal 329, 335.

423 _{The link between privacy and confidentiality has been expressed by Lord Neuberger: ‘ However, given that} the domestic law on confidentiality had already started to encompass privacy well before the 1998 Act came into force, and that, with the 1998 Act now in force, privacy is still classified as part of the confidentiality genus, the law should be developed and applied consistently and coherently in both privacy and 'old fashioned

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this rule, the falsehoods should be precluded from the protective scope of MOPI because such type of information is also excluded from the protective remit of the equitable breach of confidence since the issue of falsity and the issue of confidentiality are inconsistent. David Rolph highlights that no breach of confidence was raised in respect of a publication of false information simply because the falsehoods may not constitute a subject of confidentiality. 424

For instance, in Khashoggi v. Smith, the claimant, a public figure, failed to obtain an injunction restraining the defendant, a former housekeeper, from disclosing and publishing confidential information obtained during the defendant’s previous job. 425 _{The refusal was justified}

because the threatening disclosure contained true allegations of criminal offences despite the existence of defendant’s obligation of confidence. Sir David Cairns distinguished between the defamation and breach of confidence actions; whereas the former constitutes the protection from false defamatory statements, the latter protects true confidential information.

The inconsistency between falsity and confidentiality was reiterated in Interbrew SA v Financial Times Ltd. 426 _{Here the court decided that, in order to establish the claimant’s duty}

around identifying confidential information as one of the requirements of a breach of confidence action, concepts of falsity cannot be reconciled with confidentiality. Lightman J said, ‘There can be no right of confidence on the part of the claimant in respect of the doctored information i.e. the false information’.427

confidence' cases, even if they sometimes may have different features. Consistency and coherence are all the more important given the substantially increased focus on the right to privacy and confidentiality, and the corresponding legal developments in this area, over the past twenty years’ see: Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 [67].

424 _{Rolph, (n 13) 475.}

425 _{(1980) 124 S.J. 14}

426 _{[2002] EWCA Civ 274; [2002] EMLR 446; [2002] 2 229.}

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This argument, however, may lose its strength if the information were related to private life because such information could be confidential, even if it is false. In this respect, there is no logical and fair reason to deny the confidential nature of the information because of its falsity. 428 _{It is illogical, for instance, to prohibit an individual from restraining a}

publication containing intimate information of her sexual life obtained by her ex-partner during the marital period, simply because such a publication encompasses inaccurate information. Furthermore, there would be no difference in the injuries inflicted by a non- consensual publication of confidential information upon those interests that are protected under breach of confidence regardless of whether such information was true or false. Paul Stanley rightly denies the difference within the disclosure of true or false confidential information concerning the medical and sexual matters, as in each situation an action of breach of confidence is potentially legitimate and viable under the law: 429

‘Suppose, for instance, that in the course of treatment a patient is tested for HIV, and the test is positive. The doctor discloses what she believes to be the patient’s HIV status to the press…. It can make no difference that the test has yielded a false-positive result. Or suppose the press obtain intelligence that a celebrity has been seen having sex in a hotel with a mistress and publish a story about it. Can it make any difference that the celebrity in question was actually having sex with his wife? …. Intuitively, in none of these cases ought it to make any difference that the information is not accurate’.

Legal authorities in English jurisdiction have followed such a pragmatic, flexible approach that brought and maintained false confidential information within the ambit of

428 _{Toulson & Phipps, (n 334) 87.}

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breach of confidence. For example, in the first instance of the landmark cases of Campbell v MGN, 430 _{Morland LJ rejected the defendant’s submission that a proof of inaccuracy}

pertaining to the private assertions in question would undercut the premises of the action – namely the right to protection and redress against unauthorised publication-based disclosure of confidential information - by saying: 431

‘I reject as absurd Mr Browne's submission that because there are some errors of detail in the Mirror's revelation that Miss Campbell was attending therapy sessions at Narcotics Anonymous, for example as to the length of time that she had been attending such sessions, the information lost the mark of confidentiality’.

If the protection of confidentiality necessitates that the information it concerns be true, this would be inconsistent with the underpinning purpose of confidentiality. In such circumstances, the claimant would be required to disclose which information is true and which is false in order to protect the confidential information.432 _{The same principle was}

reiterated in the leading cases of McKennitt v Ash. 433 _{In this case, Eady J refused to establish}

the legal protection of confidentiality on the basis of truth or falsity. If the claimant must spell out which information was true and which information was false, this would make such legal protection illusory and ineffective; since the touchstone of confidentiality is to protect the disclosed information.Based on these understandings, there would be no logical objection to bringing a breach of confidence action in respect of information adjudged confidential; irrespective of whether this information is true, false or mixed.

430 _{Campbell, (n 167) [57]} 431 _Ibid.

432 _{Ibid. 86-87.}

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The confidentiality and privacy are profoundly linked and interconnected if the matter of the information is related to health 434 _{- and this can also be extended across other types}

of private information. Based on the rule that privacy and confidentiality actions to be developed with consistency and coherence, irrespective their different features, this may support the argument that falsity can be protected by privacy law. 435 _{Thus, it would be}

significantly inconsistent to protect an individual’s confidentiality in respect of non- consensual disclosure of false information regarding their health issue(s), and then preclude such information from the scope of privacy.