Password Protection = Confidentiality

In a recent case in the English High Court a judge strongly suggested that any information that is held on a computer and that is password protected automatically obtains the protections given by English Law to confidential information.

The judgement came in the context of a messy divorce between the super rich.  So I have to be careful what I say here in terms of libel law!

The wife’s family obtained files and emails from the  computer used by the husband. In order to do so they used  an IT expert to bypass the husband’s password protection.

The judgement was simple and unsurprising : the wife’s family shouldn’t have done it; they had to return all the files and emails, and they couldn’t use them in the divorce proceedings.

From a legal standpoint the interesting thing was that the judge said in passing that any files on a  computer that are password protected are presumed to be “confidential information”.

You are probably thinking “so what?”.  Well in terms of the various case laws  information is not protected by confidentiality law unless it has “the necessary quality of confidence”.

There is a lot of case law about when information has the “necessary quality of confidence”.  So for example if I tell you something in the pub does that have the “necessary quality of confidence”?   Probably not (unless I tell you its confidential).  However, if I tell you something in the context of a business negotiation then it probably does meet the “necessary quality of confidence” test (unless I tell you its not confidential).

Got it? Good.

So this case makes it fairly certain that password protected computer files and  emails that are password protected, or that are stored on a computer where the computer in password protected,  have the necessary quality of confidence.


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August 2009
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