How confidential is confidential?

Although this post is about the Aware's instructor guide, I would like to state from the outset that I am not going to comment about the Old Guard, the New Guard, the Old New Guard, homosexuality or religion (if you are not aware of these terms, then you do not need to know them for the purpose of this blog).

What you need to know is that the new president of the Aware (Association of Women for Action and Research) claimed that its instructor guide, which was used for the teaching of its comprehensive sexuality education in Singapore's public school, and was reproduced on the Internet by unknown persons, is confidential material.

Let's look at the law of confidence.

The law protects confidential material by imposing a duty of non-unauthorized use upon those who have received confidential material under an obligation of confidence. Not everything would have the necessary quality of confidential material--for instance, English courts have long ruled that something in the public domain and public knowledge would not qualify. Even the Singapore courts have ruled that not every piece of government information comes under the Official Secrets Act. In my view, it is doubtful that material taught to students in a public school would necessarily have that quality of confidence.

Even though courts would favor protecting commercial information, companies take great pains to ensure there's contractual agreement on what material constitutes confidential material with their employees, counterparties, suppliers, and so on. At the end of the day, the paperwork resulting from non-disclosure agreements (NDAs) would be well worth the uncertainty of going to court.

Footnote: this also reminds me of the 1995 case of the Religious Technology Centre versus Netcom, the case that set off legislation leading up to the codified position on Internet intermediary liability (liability on Web sites, forums, bulletin boards, and so on), such as the US Digital Millennium Copyright Act and the Singapore Electronic Transactions Act. In that case, the RTC held the copyright to unpublished works of Ron Hubbard, the founder of the Church of Scientology. A critic of the Church of Scientology posted these works on bulletin boards, some of which were operated by Netcom. RTC wished to stop these postings and asked the various parties to take them down.

The court in the RTC v Netcom decided against giving summary judgment for the RTC as there were genuine issues of fact, especially on the fair use defense available to Netcom, to be decided.

These days, we have legislation to protect Internet intermediaries such as Netcom. The RTC v Netcom, thus, became the case that all technology lawyers learnt in law school.

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Bryan Tan

Called to the Singapore and English Bars, Bryan Tan has practised in two of Singapore’s largest law firms and an international law firm. Bryan led many industry firsts including the first mass e-mail defamation case in the world, Singapore’s first publicised telecoms competition dispute, a pan-Asian co-branded travel portal, the first privately-funded cable landing project in Singapore and the world's first registrar-level domain name dispute. His areas of practice include information technology, telecommunications, biotechnology and bioinformatics, Chinese intellectual property, entertainment law and corporate work. He is also an author of Halsbury's Laws of Malaysia: E-Commerce. He also co-wrote the Singapore chapter of 'Digital Evidence' with Prof. Daniel Seng and is writing Halsbury's Laws of Singapore: E-Commerce.