Confidential Information as Property?

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Abstract:

In Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council [2010] EWCA Civ 1214, [2011] Env LR 12 the Court of Appeal held that confidential information fell within Article 1 of the First Protocol ('A1-P1') of the European Convention on Human Rights. The Veolia decision reopens the debate about confidential information as property, but this time through the prism of human rights. The court's readiness to analogise from Strasbourg jurisprudence to widen the scope of A1-P1 and to ignore extensive domestic law on this issue is concerning. At the very least, it demonstrates a stark contrast between the 'public law' or human rights notion of property in A1-P1 and the private law notion that has been articulated in the case law. Whether the 'property' label fits confidential information may be doubted given that confidential information struggles to exhibit the characteristics of permanence and stability; excludability is problematic and we see contorted and artificial notions of exchange, alienation and ownership. As well, including confidential information within A1-P1 creates at least two risks, namely, the pressure to expand protection for confidential information and analytical disruption. This should lead us to be cautious about unthinkingly creating a human right to the protection of confidential information.

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/09615768.24.2.172

Publication date: August 1, 2013

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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