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28 August 2020

Revisiting the Law of Confidence in Singapore and a Proposal for a New Tort of Misuse of Private Information

Saw Cheng Lim, Chan Zheng Wen Samuel & Chai Wen Min

Published on e-First 28 August 2020

Abstract:
This article critically examines the recent Court of Appeal decision in I-Admin (Singapore) Pte Ltd v Hong Ying Ting [2020] 1 SLR 1130 and its implications for the law of confidence. The article begins by setting out the decision at first instance, and then on appeal. It argues that the Court of Appeal’s “modified approach” fails to meaningfully engage the plaintiff’s wrongful gain interest and places the law’s emphasis primarily, if not wholly, on the plaintiff’s wrongful loss interest. The new framework also appears to have been influenced by English jurisprudence, which has had a long but unhelpful history of conflating the distinct concepts of “privacy” and “confidentiality”. To that end, it is submitted that the “modified approach” can play a more meaningful role in the context of a new common law cause of action to be known as the tort of “misuse of private information”. In so far as disputes involving commercial confidences are concerned, the traditional three-stage test for the breach of confidence action famously laid down in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 should be retained, albeit in a modified form.