SEE ALSO: censorship; code of professional conduct; information professions; women in librarianship
JAMES V. CARMICHAEL, JNR
A difficult concept to define in the area of INFORMATION provision, mainly because there are so many factors that will give rise to it. At the simplest level, it is the consequence of a failure to do some act that one was bound to do; or the doing of some act that one was prohibited from doing; or the doing of some lawful act in such a manner as to render it unlawful (for example, negligently or maliciously). The legal consequences that may flow from any of these acts or omissions may be the result of the normal application of the law, in other words occurring independently of the intention of the wrongdoer. They may also flow from an agreement to provide information, made between the wrongdoer and another to provide information of a certain type, for a certain purpose, for use by the client, in a particular way. This includes an expectation as to the level of distribution of the information. The liability outcomes relating to information can be more easily seen in two categories: first, liability for the information itself and, second, liability following a contract to provide information.
At the outset one must appreciate the nature of the 'product' with which one is dealing when providing information. Information is not property in its own right but it can be given some of the attributes of property in a variety of ways, each of which may potentially create a liability in relation to it.
Information is confidential if either it has been communicated in circumstances that a reasonable person would understand to be circumstances of confidence (this would tend to be a 'one-off' type of situation, such as a business proposition) or it is the subject and substance of a confidentiality contract (probably more of an ongoing obligation, such as the information communicated to a consultant). The use of information in breach of this confidence is actionable both in its own right, as a tort, or, if a confidentiality contract has been entered into, as a breach of contract.
It is not the information that is the problem here - in the sense of content, as would be the case for confidential information; instead it is the form into which the information is reduced for permanent record. 'Permanent form', as it is called by the current COPYRIGHT legislation, can include text, images or any other form of notation, code or language; thus, copying computer programs or materials from cd-rom without an express licence (see LICENCES) to do so is, subject to some limitations relating to different types of copyright, an infringement. If, therefore, in providing information to a client one makes use of documents, for example by photocopying them, to which one does not personally own copyright (and this would include letters of which one is the addressee), then one is incurring liability by infringing another's copyright. Equally, if one employs individuals who one knows do this, then one is liable for authorizing an infringement.