The Scope of the Public Interest Defence in Actions for Breach of Confidence

Judicial opinion, at least in Australia, on the scope of the so-called 'public interest' defence to actions for breach of confidence is divided. Proponents of a broad view of the defence assert that there exists a separate public interest defence based upon freedom of the press and the public's right to know the truth. On the other hand, there is some judicial support for the proposition that the public interest defence should encompass no more than an application of the general equitable defence of clean hands, or alternatively, that information which exposes danger or harm to the public should not be classified as confidential in any case. This paper examines these differing views and the tests required to establish that disclosure is justified in the public interest.