The law of confidence provides a safeguard for ideas and information until such time as the author sees fit to publish or otherwise exploit them.

Whilst a concept is in its infancy, confidence can be utilised to provide protection before other forms of intellectual property protection exist.

Confidence can also be used to protect material that does have the benefit of intellectual property protection.In Prince Albert v Strange (1849) 1 Mac & G 25 the court upheld the right of the plaintiff to decide when, where, to whom and if at all confidential material could be published.In Coco v AN Clark (Engineers) Ltd (1968) FSR 415, Megarry J stated that three elements must be established if a case of breach of confidence is to succeed: 'First, the information itself must have the necessary quality of confidence about it.

Secondly, that information must have been imparted in circumstances importing an obligation of confidence.

Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.'However, the reasoning in a recent decision of the Court of Appeal, Times Newspapers v MGN Ltd [1993] 6 ENT LR 119, seems to depart from or ignore these principles.

If the reasoning of this case is followed in the future it will pose problems for the artistic and industrial community alike.The Times case arose prior to the publication of Lady Thatcher's memoirs, The Downing Street Years.

Times newspapers had acquired exclusive serialisation rights to this book.

Harper Collins was the publisher of the book.

These plaintiffs sought interlocutory injunctions on two separate occasions restraining the Daily Mirror from publishing extracts from or based upon these memoirs.

The plaintiffs appealed from the refusal of the second application.

Sir Thomas Bingham MR gave the judgment of the Court of Appeal.

He said the court found the problem presented by the appeal 'an extremely difficult one' and the court would have 'valued the opportunity of considering the matter at greater length and with more time for reflection'.The defendant came into possession 'by means that are unknown' of either part or whole of the text of the book and proceeded to publish extracts that appeared to have come straight from the book.

As this was only an interlocutory application the Court of Appeal had to consider whether the plaintiffs' claim was so convincing to justify the 'extreme step' of restraining publication.The court appears to have adopted (in part at least) Megarry J's formula.

However, the application of that formula was somewhat haphazard.

The first question posed (but dealt with only briefly) was whether the material in question was impressed with 'a duty of confidence'.

It seems to have been assumed that since the material was obtained 'by means unknown' a duty of confidence attached to it.An analogy (to which the court did not refer) exists in the case of Prince Albert v Strange.

In this case some etchings made by the plaintiff came into the defendant's hands ' surreptitiously'.

It was held that where confidential information is obtained in breach of contract, confidence or equity then a duty of confidence attaches to it in the hands of the holder.A party seeking to rely on the doctrine of confidence must establish this 'quality of confidence'.

In Thomas Marshall v Guinle (1979) 1 Ch 227, Megarry VC suggested that four elements were necessary when considering the 'quality of confidence'.

First, the release of the information would be injurious to the owner of it or of advantage to rivals; secondly, that the owner must believe that the information is confidential, ie not in the public domain; thirdly, the owner's belief in the above is reasonable; and, fourthly, the information must be judged in the light of the usage and practices of the industry concerned.Broadly speaking is the information commonplace or in the public domain? Ultimately, the test appears to be an objective one for the court to consider in the light of the above criteria.In the Times case the court did not feel the information had the necessary quality of confidence.

The court seemed to feel that because the owner or the licensee of the information had an 'obvious commercial interest' in publishing as and when it chose that this would prevent the material having the 'quality of confidence'.So the court did not feel that there was any analogy in the decided cases to this situation or that the information in this case (namely the contents of the book) had the necessary quality of confidence to warrant protection.This view appears to be incorrect.

Adopting Megarry's formula: unauthorised release of the book would cause loss to the plaintiffs and benefit their rivals; the book was not yet published so could not be considered to be in the public domain; this belief was doubtless reasonably held by the plaintiffs otherwise neither would have been in the least interested in publishing the book; and, finally, if anyone could and did obtain and publish material with impunity there would be no commercial interest in acquiring rights in the first place.The law of confidence has developed around just such analogous situations (see Fraser v Thames TV [1983] 2 All ER 101, Seager v Copydex (No.1) (1967) 2 All ER 415, Prince Albert v Strange).

A straightforward analogy is that of the inventor, who having completed initial research and experiments decides to exploit his or her work.

In due course a patent may be applied for and doubtless the inventor would, per Bingham MR in this case, 'be extremely pleased if every citizen of the land were to buy [it]...'The protection of the law should not be excluded on this basis and indeed in other cases it has not been.

The Times case raised no new problems of principle and no extension of existing principle is required as the court suggested.The court did not specifically address this point.

Clearly on established case law if there was a duty in relation to information with the quality of confidence the actions of the defendant would have constituted a breach of the plaintiff's exclusive rights.The court has jurisdiction to 'prevent by the grant of an injunction any person availing himself of a title which arises out of a violation of a right or a breach of confidence' (see Stevenson Jordan & Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10).There was another issue in the Times case that the court viewed as being decisive of its refusal to grant an injunction: the question of whether there was a public interest in the publication of part of the material.

Public interest defen ces are available in confidence claims.

The essence of the defence is that the party arguing for the disclosure must show that the court can disregard the confidence because the information should be made known to the public at large or to a restricted class of people.

In Lions Laboratories v Evans [1984] 2 All ER 417 it was said that: 'The court will restrain breaches of confidence...unless there is just cause for breaking confidence...'An example of such just cause is the public interest in the publication of an iniquity - although iniquity is not limited to cases where, for instance, a plaintiff has behaved disgracefully or criminally (see Griffiths LJ, Lion Laboratories at p.550C-D).

Public interest covers religious matters (Hubbard v Vosper [1972] 2 QB 84) and persons in the public eye (Woodward v Hutchins [1977] 2 All ER 751).The public interest defence is usually relied upon when a plaintiff seeks to restrain publication now or at any time.

In the Times case the book was due to be published in ten days' time.

Counsel for the plaintiffs effectively conceded that there was a public interest in the publication of material relating to 'the present and in particular the present prime minister' whereas there was no public interest in material 'relating to ten years ago' (namely the Falklands War).

This concession was made, no doubt, in part due to the comments made by Forbes J, relying upon Lion Laboratories v Evans, in the High Court, where he held that the book was of sufficient public interest given the proximity of the Conservative party conference to warrant immediate publication.Even supposing that there might have been inconsistencies between Lady Thatcher's previous statements and her views as recorded in the book, what could happen over the course of the next ten days that would so serve the public interest and justify immediate publication and not that short time later? Even the proximity of the Conservative party conference would surely not make the difference.

The book was set to be published and there was no question of that information being withheld or omitted on publication.The court also had difficulties with the wording of the injunction.

The suggested wording would have restrained the publication of the contents of the Downing Street Years as follows: 'Save for such material as records Lady Thatcher's views about the abilities of the present prime minister or of any present members of the cabinet and which is inconsistent with information otherwise provided to the public on that issue by or on behalf of Lady Thatcher.'The reason the application failed is partly based upon the inability of the court or counsel for the plaintiffs to find a suitable wording for the injunction to protect the parts of the book which were not affected by the defence.

The suggested wording as outlined above was held by the court to be insufficiently clear.

Any injunction granted 'should be to the highest degree clear and precise so that no publisher would be in any doubt whether he was infringing it or not...'The proposed wording would open up a 'wide and extremely difficult field of enquiry'.

Since the injunction would be binding upon the whole of the press (Attorney-General v Times Newspapers Ltd [1991] 2 All ER 398) the court could not grant an order in the terms sought or with 'any obvious variations' to it.If the court had granted an injunction at this stage it would have been final in nature.

The defendant would have no reason to proceed and no commercial reason to do so.

Given the court's comments on their ne ed for 'more time for reflection' the plaintiffs were left to their remedy in damages.The following lessons can be learned from this case.

First, the 'necessary quality of confidence' will not always be clear cut.

Despite the fact that the approach of the court in this case is not consistent with the authorities, the hopeful plaintiff must establish to the satisfaction of the court that the information deserves the protection sought.Secondly, if the defendant successfully establishes a defence of public interest then the court will not restrain publication by interlocutory injunction but leave the complainant to a remedy in damages after weighing all relevant matters, such as whether damages would be an adequate remedy to compensate the plaintiffs if they succeeded at trial (see eg Hubbard v Vosper [1972] 2 QB 84, Woodward v Hutchins, p.764).

Finally, the proposed wording of an injunction should be clear and precise.

The authorities are clear on this, see Woodward v Hutchins, Khashoggi v Smith [1980] 124 SJ 149.The fact that this is a Court of Appeal case poses problems for the future application of the law of confidence.

The Master of the Rolls may be correct and the law may need extending to allow the granting of an injunction on facts such as these.

If so the law as it now stands could well be the 'mole's charter' that so concerned counsel for the plaintiff in Lion Laboratories v Evans.However, as Bingham MR stated in his judgment this 'may of course prove to be an incorrect view'.

This statement allows for sufficient doubt to avoid the application of the case to broader principles of confidence.

If followed at all it is most likely to apply to cases involving the public interest defence.The Master of the Rolls went on to say that 'the present situation is in many respects an unhappy one'.

If this case is followed publishers, authors, practitioners and businesspeople would no doubt agree.