On 4 September 2016 the Carlton Football Club released a media statement declaring that it would be investigating an incident with a view to lodging a police report over the theft1 of its intellectual property. There is no suggestion of a break-in and nothing was "taken". The incident instead related to social media posts which published images of a whiteboard listing women AFL players' names. The posts seemed to imply that they were the Club's ranked list of draft-eligible players for the upcoming inaugural season of the AFL Women’s competition.
How can the Club tackle this situation?
The Club is clearly unhappy about the posts. Whilst it may have some difficulty pursuing criminal charges over the incident, there might be a civil action it could pursue. If the Club wants to pursue the spoiler for a breach of confidential information it will need to show four things.
1. Identify the confidential information
It seems that the order and groupings of the names on the whiteboard potentially exposes the Club's selection strategy. This could be the Club's confidential information.
2. Show that the information is actually confidential
If the information is the Club's selection strategy it could be categorised as a 'trade secret' because it has commercial value and is solely within the knowledge of the Club. Opinions of people made during a private meeting have previously been held by the courts to possess the quality of confidence, but the Club's strategy will not qualify if it is common knowledge, in the public domain, or mere 'trivial tittle-tattle'.
3. Show that the recipient was obliged to keep the information confidential
While we don't know exactly how the Club's information was obtained, even a visitor who innocently stumbles across names on a whiteboard could be expected to be aware that those names and their positions might hold commercial value to the organisation. Information which has been improperly obtained will more likely be subject to an obligation of confidence as a person obtaining the information in a dubious manner will ordinarily be aware that they should not be in possession of it.
Where the information is not received with an express reservation of confidentiality, nor within a recognised relationship of confidence, the obligation can still come from the circumstances in which the person acquired the information. Assuming that the circumstances were such that a reasonable person would recognise the information as confidential, there will be an obligation of confidence even if that person did not recognise the value of the information.
4. That the information was misused
The publication of the whiteboard photos in the social media posts could constitute a misuse of the information. This is so even if someone else does not ultimately use the information.
What points can the Club score from this?
The ultimate goal for any civil action for a breach of confidential information is to get a result that has value to the Club. The Club would therefore need to assess whether there is value in any of the usual remedies, which are:
- injunction – which aims to prevent further disclosure. It will include orders to prevent a spoiler from further publishing the information and requiring them to take down any publications over which they have control;
- account of profits – which, if the spoiler gained anything from the breach, would order that those profits be paid to the owner of the information;
- damages – which would compensate the owner of the information for any loss suffered as a caused by the misuse. The amount of damages must be quantifiable.
Of course, trying to use the courts to suppress information in the age of social media may have the opposite effect – as Barbra Streisand famously discovered.