Effectively its a gag order.

December 14, 2009 7:16 AM

UK specific: am I bound by confidentiality and privacy clauses I didn't agree to?

In the latest installment of my ongoing battles with a crappy landlord, I've recently received correspondence marked "Private & Confidential".

I suspect this is being undertaken as I've initiated legal proceedings against my landlord for libel, as well as have actively (and effectively!) engaged local area Councillors, MPs and the media in matters pertaining to quality of services delivered.

So am I bound by my landlords unilateral pronouncement that correspondence they've freely sent to me responding to formal complaints is indeed "Private & Confidential"? On the surface and from my banker / layman's perspective this seems fallacious; I wasn't consulted about this constraint, nor have I been offered or received any compensation for accepting this constraint. It was unilaterally imposed, and if I were to acquiesce to such a constraint I couldn't escalate this matter to The Housing Ombudsman or perhaps even initiate litigation should my complaint not be resolved.

I'd like to receive responses from folks familiar with UK law and UK conventions regarding business correspondence please. First hand experience would be brilliant.

I realise that while you might be a Solicitor you aren't my Solicitor and that's ok as I'm really trying to avoid ringing my Solicitor will not only talks very, very slowly, will charge me in six minute increments for the privilege of exchanging socially required pleasantries before we get down to talking business.

posted by Mutant to Law & Government (14 answers total)

Best answer: Does it say anything other than "Private and Confidential?" If not, is it possible that the marking just means "this correspondence is intended to be read only by the recipient, so if you're not the recipient, don't read this?" Many lawyers I know in the US put a warning like that in their correspondence to indicate that if the information accidentally falls into the wrong hands, it shouldn't be read or used.
posted by decathecting at 7:25 AM on December 14, 2009

Best answer: IANAS but I've always understood mail marked as Private and Confidential to mean that it can be opened by the addressee only - once open it is up to the addressee to do with it as s/he sees fit.
posted by ceri richard at 7:41 AM on December 14, 2009

Best answer: IANAS but to me "Private and Confidential" just means not to be opened by your secretary/wife/anyone else who might open your post for you.
posted by missmagenta at 7:45 AM on December 14, 2009 [1 favorite]

Best answer: Google yields some free legal advice lines for the U.K.
posted by jeffburdges at 7:53 AM on December 14, 2009

Best answer: IANAS/L either. I was also under the impression that "Private and Confidential" simply meant that it can be opened by me alone (or someone I nominate). I've just asked my law geek friends, so maybe I can refute this in a little while.

I recently received a "private and confidential" letter telling me I hadn't got a job I had interviewed for. If I wasn't allowed to tell anyone, well then I would have no way to make people listen to me moan.
posted by jonesor at 8:11 AM on December 14, 2009

Best answer: As a non-solicitor, and if I recall correctly, if they mark the envelope 'without prejudice', that means that the contents are not to be used in court, for example if they form part of an attempt to settle out of court. Putting 'private and confidential' doesn't really have any real legal meaning - they just don't want others to open it.
posted by dowcrag at 9:00 AM on December 14, 2009

Best answer: IAAUB (I Am An Uninformed Boob), but I couple of times I've heard Ian Hislop, the editor of Private Eye and panelist on Have I Got News For You, refer to letters he's been sent by solicitors marked "not for publication". In both cases that I can remember, he communicated the gist of the letter (e.g. that Carter-Ruck had written to withdraw a claim) but was careful to only give very sketchy detail and not to quote them directly.

Given Hislop's tendency to hold people accountable for their words and sail pretty close to the wind in libel matters, his reluctance to repeat what was in those letters might mean that there's some legal mechanism one can use to stop a recipient from publishing your letter. So while my instinct is to say that "Private and Confidential" probably just means that no-one should open it before you (It's written on all the letters I get from my banks, and I'm sure I'm allowed to tell people my balance if I want to), I'd be cautious before crossing an already litigious opponent.
posted by metaBugs at 9:05 AM on December 14, 2009

Best answer: My UK bank account statements come just in such a private and confidential envelope. If it's not on the letter itself, prompting you to acknowledge/deny something specific, to be signed and returned, I can't imagine that there is a difference.
posted by Namlit at 9:07 AM on December 14, 2009

Not a Solicitor.

Although I tend to agree with the "meant for your eyes only" analysis, you should consider whether the label on the outside of the envelope puts you on notice that they consider this information confidential, and whether there is any applicable law that requires you to treat it as such.

For example, some jurisdictions protect trade secrets. In order to qualify for that protection, items that are secret must be treated as such, including some degree of identifying the confidential material as such.

Then again, disclosing that information to someone who didn't expressly agree to keep it confidential seems, to be, to be a bit of a problem for them if they ever tried to claim it was.

Based on what you've described, I doubt they could unilaterally prevent you from introducing those letters in litigation or ombudsman proceedings unless they were "settlement proposals" and UK law provides for confidentiality of settlement proposals.

A lot of this may depend on exactly what the contents of the correspondence may be.
posted by mikewas at 10:09 AM on December 14, 2009

Best answer: Sorry for a typically lawerly answer, but I don't think this is straightforward.

There is an English common law duty of confidence, which could apply, depending on the test below. If it does apply it wouldn't restrict you in taking legal proceedings (or quasi-legal proceedings such as a complaint to an obudsman) but might stop you sending the correspondence to the local paper.

The leading case from the 1960s sets out a three part test:
1. the information must have the necessary quality of confidence about it;
2. the information must have been imparted in circumstances importing an obligation of confidence; and
3. there must be an unauthorised use of that information to the detriment of the party communicating it.

Without knowing what's in the letters it's difficult to give an answer in relation to point 1. In relation to point 2, just adding the words "private and confidential" to a letter doesn't automatically mean the duty arises, but it probably makes it more likely than if it wasn't written. On the third point, it may or may not be clear what the detriment to the landlord is.

There is also a public interest defence in making the information public, so if you've got smoking gun evidence of wrongdoing then you're on better ground to disclose than if it's just embarassing to the landlord.

Perhaps the first course of action is to tell him you're going to publish and see what the response is.

[Though I am a lawyer, I'm not an expert on this so readily defer to those who are and know more about the three limbs of the test.]

[Also, it looks like the Wikipedia article on this is pretty good]
posted by patricio at 10:14 AM on December 14, 2009 [1 favorite]

decathecting has it.

But, really, what I wanted to say is that you might want to consider a new solicitor. If he has to resort to billing in 6-minute increments and drawing out conversations, then you deserve a better deal.
posted by Citrus at 11:58 AM on December 14, 2009

There is a very simple way to view this which would un-complicate it. That is from the perspective of copyright.

You own the copyright to your own letters and may share or publish them as you see fit. The copyright of your correspondents similarly lies with them - you never have the right to publish their letters unless this right is specifically granted to you.

(This is an issue not infrequently encountered in publishing, particularly of biographies - Author A and Author B correspond over a lifetime and biographer C wishes to publish their letters as part of the biography of Author A. Despite the fact that Author A's estate physically holds Author B's letters, they may not be published without consent from the estate of Author B. This consent is not always given.)

The point being that your ability to publish the correspondence of another party is already limited. No confidentiality clause can bar you from sharing these letters with your solicitor; the question of if it bars you from sharing them with 3rd parties like your council person is less clear. Ironically, if you posted the text of the confidentiality clause, this would be much easier to resolve.
posted by DarlingBri at 12:30 PM on December 14, 2009

If he has to resort to billing in 6-minute increments...

Don't all lawyers bill in tenths of an hour? Also, does he/she communicate by e-mail at all? That might make things go faster so that you get billed less.
posted by leahwrenn at 12:57 PM on December 14, 2009

FYI, this is what my barrister friend had to say:

"It’s got nothing to do with who opens the letter, because it’s illegal anyway to open mail that’s not addressed to you.

As for you telling other people, you aren’t under a legal duty to keep information confidential unless you have signed up to some sort of confidentiality agreement. I don’t think the act of opening a letter marked private and confidential would be deemed sufficient to amount to a binding contract of confidentiality.

I suspect, therefore, that it has very limited legal value."
posted by jonesor at 2:18 AM on December 20, 2009