Gold & Anor v Cox & Anor

An employee may owe duties of confidentiality through an express or implied employment term, and such an obligation may also arise independently of contract. The absence of a written confidentiality agreement is therefore not decisive. Where there is a strong arguable case that private information was obtained through employment and a real risk exists that it will be published in breach of confidence or privacy, the court may grant an interim injunction. Any challenge to the scope of the injunction, or request for additional exceptions, should be supported by specific evidence rather than general assertions. Information already in the public domain remains publishable subject to the usual exclusion for publication resulting from a breach of confidence, privacy or the order.

The claimants sought an interlocutory injunction restraining the defendants from publishing private and confidential information concerning the first claimant and her daughter. The first defendant had previously been employed as the first claimant’s nanny and was subject to an express confidentiality agreement. The second defendant had worked temporarily for the claimants but had no written agreement; she proposed writing a book based partly on her employment and events surrounding the first defendant’s criminal case.

The first defendant consented to the order. The second defendant, who was abroad, opposed it and sought an adjournment. The central issues were whether there was a sufficient case that the defendants owed duties of confidentiality or privacy and whether publication should be restrained pending the adjourned hearing.

1. Interim order granted. The court prohibited disclosure of the specified private and confidential information pending the adjourned hearing or further order. The first defendant consented; the second defendant’s position remained to be determined after she had an opportunity to present evidence and submissions.
2. There was a strong case that information obtained by the defendants in the course of their employment, concerning the first claimant and her daughter, was subject to duties of confidentiality. The nature of the work and the presence of a young child made it likely that confidential and private information had been acquired.
3. The absence of a written agreement did not prevent the second defendant from being bound. There was a strong case that the ordinary implied terms of confidentiality found in employment relationships applied to temporary employment as well. An employment agreement containing an implied confidentiality term was still an agreement, and an obligation of confidentiality could also exist independently of express or implied contract.
4. There was also a strong case that the defendants were bound by the general law of privacy. The second defendant’s proposed publication created a real risk of breach unless restrained.
5. The order contained a common-form proviso permitting disclosure of information already in, or subsequently entering, the public domain through national media, except where that resulted from breach of the order or of confidence or privacy. Any application to vary the order or remove it had to be based on relevant evidence, not general statements.

Not an appeal. The judgment records an adjourned interlocutory application before the High Court; no prior appellate decision is stated.