The word “confidentiality” is often used in the professional environment. For example, a doctor, therapist, or attorney may have told you that anything said at an appointment or consultation is confidential. In some cases, an employer may tell you that certain business information is confidential.
But what happens if the information is not actually kept confidential? When can you take legal action for breach of confidentiality? What can you sue?
In this article, you will learn what confidentiality is, who has a duty of confidentiality, when a breach of trust has occurred, and what you can do about a breach of trust.
What is confidentiality?
Confidentiality is the practice of keeping sensitive and private information to oneself without disclosing it or using it to the detriment of others. Confidentiality is important in situations where someone is in a vulnerable position to share information that is private and could be harmful to them if released, disclosed or misused 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 secret what you are told, unless there is a good reason for disclosing that information.
Who is bound to secrecy?
Whether someone is sworn to secrecy depends on a variety of factors, such as: B. the level of trust inherent in the relationship between two or more people and how vulnerable the person entrusting the information is to the recipients.
This may be inherent in a relationship traditionally considered to be one in which confidentiality is owed, such as a marriage. B. Doctor-patient, attorney-client, or those that certain employees owe to their employers.
Someone may also owe a duty of confidentiality under a written non-disclosure agreement that sets out what is considered confidential information and the consequences of a breach of confidentiality.
The average person is not bound by any legal form of secrecy to others. Even if you want someone to keep something secret, or tell them that certain information is confidential, that person then owes you a duty of confidentiality.
An employer may require you to sign a confidentiality agreement in order to work for them. Professionals such as lawyers and doctors have an inherent ethical and legal duty to maintain confidentiality as they typically handle highly sensitive information in the course of their work on behalf of their clients.
Determining whether someone owes you a duty of confidentiality depends largely on the facts of your case, unless you are one of the professionals to whom the duty of confidentiality normally applies.
What is a breach of trust
If you have entered into a confidentiality agreement with someone, they have an obligation not to disclose the specified information that has been given to others without permission. Likewise, professionals such as doctors, lawyers and therapists should be aware of what they can and cannot share about their clients and they might make this clear to you before hiring you as a client.
If you owe someone a duty of confidentiality, disclosing confidential information to a third party without their consent may constitute a breach of trust. In Ontario, you can hold someone legally liable for breach of trust if you can show:
1. The information you submitted was confidential.
2. The information you have submitted has been submitted confidentially.
3. The information you submitted has been misused by the person to whom it was submitted.
4. The information has been disclosed to others to the detriment of the person who originally disclosed the information in confidence.
However, depending on the facts of the individual case, there are exceptions to the rules of confidentiality. For example, an attorney may have an ethical and legal obligation to disclose a client’s confidential information if he has a reasonable cause that someone could harm themselves or others.
In any event, you should obtain prompt legal advice before disclosing any confidential information to ensure that you are not unlawfully breaching confidentiality.
What to do if someone violates confidentiality
If you ever suspect someone has breached a duty of confidentiality owed to you, the first thing you should always do is gather all your evidence and schedule a consultation with an attorney to discuss your options.
For professional accountants who are bound by a duty of confidentiality, there are usually supervisory authorities that investigate and punish violations of the duty of confidentiality. If a professional organization is available to which you can make a complaint, you can report the breach of confidentiality of the professional accountant concerned.
Depending on your circumstances, you could also sue someone for damages and other remedies for breach of trust. Litigation usually begins with a formal notice setting out your legal claim against the other party to attempt a cost-effective settlement. If the other party refuses to come to an agreement, your only option is to sue and try to resolve the matter while you go through the court process.
If the dispute is not resolved before the trial, a court may award economic or other damages for breach of trust or order other remedies. A common remedy is an injunction, requiring an individual to stop disclosing or misusing confidential information. You can also ask a court to issue an order requiring the other party to erase all traces of your confidential information. Each circumstance could require different corrective actions.
If someone owes you a duty of confidentiality, they must avoid unauthorized disclosure of your private information to others or use your private information entrusted to them to harm you.
In addition to reporting certain professionals for ethical violations, you can also sue someone for breach of trust to seek damages and other remedies for the harm suffered. You can start by arguing and resolving the matter outside of the court system, but you may be forced to take your case to trial to get the desired outcome.
Because each case depends on its own facts, you should always discuss your legal options with an experienced litigator to determine your rights. Determining whether someone has breached confidentiality and what remedial action you should take depends on your individual circumstances.