Confidentiality law recognizes that in the interests of justice there are occasions when certain communications, written or oral, should be regarded as confidential and therefore privileged from the requirement of being given in evidence in court proceedings. Communications between husband and wife are always privileged. Communications made in self- protection are equally privileged, e.g. a warning given by a master to his workman not to associate with a former fellow workman dis- missed for dishonesty.
Communications as to affairs of state or official communications between public officers on public affairs cannot be disclosed without the consent of the head of the dept concerned. The Confidentiality of communications with legal advisers extends to all statements or documents concerning matters made the subject of professional intercourse; but communications made in furtherance of a common unlawful design are not privileged.
The compulsory disclosure or discovery of documents after action commences is no real exception to the rule of C., such discovery being based on the principle that if the party makes the documents part of his case they must come out sooner or later; and their purport ought, in ordinary fairness, to be divulged to the other party, that he may know what case he has to meet.
Medical men may be compelled to disclose communications made to them even though imparted in professional confidence; and the rule of privilege probably does not extend to communications made to clergymen; but judges have evinced a disinclination to enforce disclosure. In this latter respect Eng. law differs from that of Rom. Catholic countries and the U.S.A. In Scots law confessions made by a prisoner to obtain spiritual advice and comfort are, but confidential communications to clergymen in the ordinary course of their duty are not, privileged.
A broad distinction must be noted between statements made in answer to confidential inquiries and those merely volunteered. The latter would be protected only if it were the duty of the person making the statement to volunteer the information contained in it; for the law does not protect idle gossip. Generally it may be said that where a confidential relationship exists, e.g. as between master and servant, brother and sister, employer and employee, or perhaps intimate friends, there is a mutual duty to volunteer information on anything which each of them ought to know. But where there is no confidential relationship volunteered statements are not often privileged.
