The Great Zero Challenge

[James Cox]

On 9 Sep 2008, at 10:59, Nicholas Bohm wrote:

> 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.
>>>>>
>>>
>>> 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.

under which legal provision? and how does that apply to divorce  
proceedings?

>> 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.

Yeah, i think it's time to stop trying to apply RIPA to everything.