The Great Zero Challenge

[Peter Fairbrother]

Nicholas Bohm wrote:
> Peter Fairbrother wrote:
>> Roland Perry wrote:
>>> In article 
>>> <3452E045-84B4-4ABA-A319-4D379CA1E44A@sourcetagged.ian.co.uk>, Ian 
>>> Mason <ukcrypto@sourcetagged.ian.co.uk> writes
>>>> I have the appended signature in my armoury for  replies to those 
>>>> who send such ludicrous legalese.
>>>
>>> I have one too - which seeks to illustrate that if you don't 
>>> understand it, how can you comply?
>>
>> As I understand it, a disclaimer that a communication is legally 
>> privileged may have some legal effect in preventing third parties from 
>> divulging it. Once received, the recipient can reveal the contents 
>> (unless he's a solicitor under a duty to keep schtumm).
>>
>> However if you send me a disclaimer attached to a communication, I can 
>> just ignore it - I haven't agreed to keep it secret, and am perfectly 
>> at liberty to repeat the sense of the contents, though if eg it's a 
>> poem I may not have copyright to the expression, and then I can't 
>> reproduce it exactly.
>>
>>
>> The last situation is when the contents of an unpriviliged 
>> communication comes into the hands of a third party. If it has come by 
>> interception I think (haven't checked) it's illegal under RIPA to 
>> reproduce it.
>>
>> However if it has come into the hands of third party by chance, or by 
>> some other means not involving interception, then I'm not so sure. 
>> Obviously posting to usenet implies that a communication can be freely 
>> reproduced, but in other cases where eg a third party reads a 
>> communication marked PRIVATE at the end, does the reader have any duty 
>> to keep it private?
>>
>> In common courtesy, yes, but under law I don't know. I doubt it, but - 
>> Nicholas?
> 
> Last time I thought I understood "breach of confidence" (which was 
> before it began its recent strenuous morphing into a basis for a remedy 
> for breach of privacy), the answer was that marking things "Private" or 
> "Confidential" did not by itself impose a duty on the recipient.  It 
> might, if consistently used in the course of a continuing relationship, 
> especially if used by both parties, provide evidence that a 
> "relationship of confidence" had come into existence.  If so, disclosure 
> of information exchanged within that relationship, as long as it was 
> information of an intrinsically confidential kind, would be a breach of 
> confidence.  Marking may also act to designate something as part of a 
> class protected under a prior agreement.

Is it correct that, for a breach of confidence, there has to be an 
agreement beforehand that that matters will be kept confidential, and 
absent such an agreement there is no duty to keep matters confidential?

Would that then mean that a continued marking as "private" may (or may 
not) simply be evidence of such an agreement?



This leads on, or back, to RIPA and Phorm and the need for bilateral 
consent to an interception.

Under RIPA consent is needed from *both* the sender and the recipient of 
a communication while it is in transit (which I take generally to mean 
before the intended recipient has received it) for it to be legally 
intercepted by consent. This is actually quite good, though I don't know 
how far it is being applied, eg in the Police investigation of BT's 
Phorm trials.

So post-RIPA an (un?)articled clerk might be committing a RIPA offense 
in opening an envelope marked "for addressee only" if it was clear that 
it was meant only for the senior partner (assuming it was still 
technically in transit in a public communications system - but see Lord 
Bassam's doormat, maybe the internal mail system of a solicitor's office 
is a private comms system).


But if there is a private comms system in the path, how can I send 
someone a communication which won't be, and would be illegal (not just 
actionable) to be, read by third parties?

I might well want to do that. Can't think why offhand, but it's possible.



-- Peter

(who just got 40 cases of beer delivered, but then had to carry them up 
the stairs - hard work!)

(they do beer deliveries 24/7, or rather 24/5.5, around here - a big :) 
to Blair (otherwise, spit!!) for that)