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iPhone J.D. reviews an intriguing development: a standard from Non-disclosure Agreement "app" for your iPhone - iNDA. The developer told iPhone J.D.:

"People often have informal meeting where they would like to discuss ideas with colleagues, friends, or prospective employees. We want to promote these meetings by giving people legal protection available to them at all times."

STOP LAUGHING, this is fascinating: The discloser actually signs the document with his or her finger on the iPhone and the signed document is emailed to both parties. Read the review and watch the demo. A couple of  points about this (1) enforceability and (2) ramifications. First, although it is available in the Australian iTunes store ($5.99) and the developer's website says the agreement has been drafted by "a leading contract law firm", the developer's conversation with the iPhone J.D. suggests the app was drafted in line with US laws. Whether or not it would be enforceable in Australia may well be another matter. One can't tell from the screen shots what the wording is. Also, it doesn't look like you can add details like what the information claimed to be confidential is. On the other hand, we have electronic signature laws too and a relationship of confidentiality can arise where the confidential nature of the circumstances is apparent from the circumstances. Signing up to such a document might, just might, lead to such an inference. You should form your own views. Secondly and in many respects far more intriguingly, think about the ramifications. We already go along to mediations toting our laptops and maybe a printer, type up the terms and print them out for signature. With this product people can have in their pockets - well in their iPhones - and with them at (pretty much) all times a document which is intended to create binding legal relations with some other party and actually get them signed up on the spot. OK, this particular document is pretty rudimentary and I personally don't often find myself suddenly desperate to sign the person I'm talking to up to an NDA. How much longer will it be though before the number of fields in the document that can be customised is increased and you can actually start tailoring some form or other to the particular circumstances?

Telstra and Optus have an interconnect agreement, in part to regulate how callers originating from one network get delivered to the other, charges and the like. Optus successfully sued Telstra for misusing Optus' confidential information under the agreement: information about call traffic between the two networks. (You should look at that judgment as it illustrates the two-edged nature of many definitions of confidential information.) In this part of the fight, Edmonds J declined to grant relief under the equitable obligation of confidence as the contractual obligations in question were comprehensive. His Honour also explored the meaning of the prohibition on unconscionable conduct in s 51AA of the TPA, but declined to find a contravention in that context. Optus Networks Ltd v Telstra Corporation Ltd (No. 3) [2009] FCA 728

Following on from last week's Giller v Procopets, I was asked if Max Mosley's payment of the prostitutes precluded a claim for breach of confidence, leaving him just with his Conventional rights to privacy. It is certainly true that the trial judge focused primarily on the invasion of Mr Mosley's rights to privacy. However, his Lordship did also find that "Woman E" breached her obligation of confidence to Mr Mosley:

104 In the light of these two strands of authority, it becomes fairly obvious that the clandestine recording of sexual activity on private property must be taken to engage Article 8. What requires closer examination is the extent to which such intrusive behaviour could be justified by reference to a countervailing public interest; that is to say, at the stage of carrying out the ultimate balancing test. I will focus on those arguments shortly.

105 Before I do so, however, I need to address the separate question of whether Woman E owed a duty of confidence to the Claimant and the other participants in respect of the events at the flat on 28 March. In the ordinary way, those who participate in sexual or personal relationships may be expected not to reveal private conversations or activities. Evidence was given by the Claimant and the other women both generally about the recognised code of discretion on "the scene" and also, specifically, about their relationships with one another. Woman A was a close friend of Woman E and had introduced her to the Claimant. Her outrage is displayed in a text she sent on 11 April:

" … our scene is based on complete trust and complete discretion. However one of my so called close friends dominatrix [Woman E] has betrayed that confidence by doing what she has done. I am devastated by this act of pure total selfish greed, she has no morals, no integrity, no loyalty, complete disregard to others, cruel, and she is a liar!!! No one … deserves this invasion of privacy."

106 It was often said that "there is no confidence in iniquity", but it is highly questionable whether in modern society that is a concept that can be applied to sexual activity, fetishist or otherwise, conducted between consenting adults in private. All the other women, as well as the Claimant, felt utterly betrayed by Woman E's behaviour in filming them without consent and selling the information to the News of the World. I was told that she was soon ostracised from "the scene", where the need for discretion is widely accepted.

107 It is true that the Claimant on this occasion paid the women participants, although he has not always done so in the past, but this does not mean that it was a purely commercial transaction. Even if it was, that would naturally not preclude an obligation of confidence, but it is quite clear from the evidence that there was a large element of friendship involved, not only as between the women but also between them and the Claimant. For example, had it not been for the intervention of the News of the World there was a plan to offer him a (free) session for his birthday (which falls in April).

108 In any event, irrespective of payment, I would be prepared to hold that Woman E had committed an "old fashioned breach of confidence" as well as a violation of the Article 8 rights of all those involved. This may have been at the instigation of her husband, who saw the opportunity of making £25,000 out of the News of the World and who made the first approach. (emphasis supplied)

One might add that the equitable obligation of confidence long since escaped the confines of private relationships involved in (Prince) Albert v Strange and Argyll v Argyll to afford protection in many commercial situations such as employer-employee relationships where money changed hands. So, while the obligation of confidence was recognised, it would seem the English court took the converse approach to the Victorian Court of Appeal - concentrating on the modern right to privacy.  So e.g. Eady J noted at [182]:

The cause of action now commonly described as infringement or breach of privacy, involving the balancing of competing Convention rights, usually those embodied in Articles 8 and 10, has recently evolved from the equitable doctrines that traditionally governed the protection of confidential information. Now (and especially since the formulation by Lord Nicholls in Campbell v MGN Ltd [2004] 2 AC 457) it is common to speak of the protection of personal information in this context, without importing the customary indicia of a duty of confidence. 

Max Mosley v News Group Newspapers Ltd [2008] EWQB 1777