Issue No. 2:
Whether or not the launch of Google SMS trader was a breach of
the plaintiff’s rights?
It is the case for the plaintiff that by reason of the defendant first accepting to use its SMS
product but then quietly switching to use the SMS product of Google there was breach of
confidence and unjust enrichment on the part of the defendants.
Counsel for the plaintiff submitted that an action for breach of confidence was new in our
jurisdiction but is emerging in the developed countries. He further submitted that it
covers personal, trade secrets, know how and ideas. He noted that this area was not
covered by our laws of intellectual property and so reliance would have to be made on
case law.
In this regard I was referred to the case of Campbell V MGN Ltd [2004] AC 457 at 464
where Lord Hoffman held
“…imposition of a duty of confidence (is) whenever a person receives
information he knows or ought to know is fairly and reasonably
confidential.”
The learned Judge then citing the decision of Lord Goff of Chieveley in the case of
Attorney General V Guardian Newspapers Ltd [1990] 1 AC 109 at 281where it was
further held that
“…a duty of confidence arises when confidential materia information
comes to the knowledge of a person in circumstances where he has notice
or is held to have agreed that information is confidential with the effect
that it would be just in all circumstances that he should be precluded
from disclosing the information to others”
Counsel for the plaintiff submitted that such a duty may exist even where there is no
contractual relationship between the parties. In this regard he referred me to the decision
of Lord Greene MR in Saltman Engineering Co Ltd V Campbell Engineering Co
Ltd [1948] 65 RPC 203 at 215 where he held
“…the information to be confidential must, I apprehend, apart from
contract, have the necessary quality of confidence about it, namely, it must
not be something which is public property or knowledge. On the other
hand, it is perfectly possible to have a confidence document, be it formula,
a plan, a sketch or something of that kind, which is the result of work
done by the maker on materials which may be available for use of
anybody; but what makes it confidential is the fact that the maker of the
document has used his brain and produced a result which can only be
produced by somebody who goes through the same process…”