The Great Zero Challenge

[Nicholas Bohm]

Peter Fairbrother wrote:
> 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?

No; the traditional requirement was that there must be a confidential 
relationship - contract could establish that, but so could other things. 
  Communications between spouses, for example, are confidential.

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

It might indeed help to show that things so marked were sent in the 
course of a confidential relationship - although, as others have pointed 
out, persistent inappropriate use of such markings would undermine the 
possibility of sustaining such an inference.

> 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.

As Roland says, RIPA wasn't designed to help you.

Nick
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