Nature of Confidentiality Defined in Court of Appeal Test Case

The nature of confidentiality has been pondered by the Court of Appeal in a guideline decision concerning a parent who posted information about eleven-plus examination papers online before all the candidates had sat them.

The exam was taken by over 1,800 pupils vying for entry to six grammar schools in one local authority area. The majority of them sat it on the same day, but over 300 candidates took it later. In the interim, the parent published details of the questions on a website, giving rise to concerns that those pupils who took the exam later may have gained an unfair advantage.

After the parent declined the council’s request to take down the posts, an injunction was issued against him by a judge. He was banned him from publishing or disclosing the contents of eleven-plus exam papers used in three consecutive years. The judge found that dissemination of the information was plainly unauthorised and that he had breached the council’s confidentiality rights.

In challenging the injunction, the parent pointed out that candidates had never been told not to disclose the contents of the exam papers to others. Many would have done so to their parents without committing any breach of confidence. The information that he had published was in any event so limited and imprecise that it did not compromise the examination process.

In dismissing his appeal, however, the Court noted that it would have been obvious to him, and to any other reasonable person, that the council did not want information about the contents of the exam to be disseminated. It did not follow that, because a child could tell his or her parents about the questions, the parents were free to publish that information, knowing that other candidates were yet to take the exam.

Such communications were made in very particular circumstances, as part of the child-parent relationship, and did not dilute the information’s confidential character. It was entirely consistent with principle to impose a duty of confidentiality on parents in those circumstances. The information posted by the parent was far from trivial and was not so generally accessible that it had ceased to be confidential.