Duty of confidentiality

A duty of confidentiality is a legal obligation to keep certain information, which has come to one’s knowledge through his or her work, secret and not make improper use thereof. A duty of confidentiality may arise in multiple contexts, such as in the public service sector or in certain private occupations. Information is considered confidential if it needs to be kept secret in order to protect important private interests or where substantial grounds of public interest require such confidentiality.

A duty of confidentiality will mostly exist for persons working in the public sector, whereby breaching this duty can lead to criminal sanctions. Employees in, for example, the secret service, the police, the social services and the health service can be punished for breaching confidentiality. The same applies to persons who are or have been engaged in a task which is carried out by agreement with a public authority. Secrecy may also derive from legislation in specific areas. For example, employees of financial institutions or accountants are bound by professional secrecy and are not allowed to disclose information about clients and customers to others, whether the disclosure is to an individual, to a public authority or to the public. Confidentiality may also arise from private agreements, in particular employment contracts.

The obligation of confidentiality does not apply if the person concerned is obliged by law to disclose the confidential information. This applies, for example, in cases where there is an obligation to report to a public authority or to give evidence as a witness. For some professions however, the obligation of professional secrecy is considered so important that it generally takes precedence over the general obligation to testify. This applies, for example, to doctors, lawyers and priests. Nor does the obligation of professional secrecy apply if the person concerned is acting in the legitimate pursuit of a public interest or in his own or another's best interests. If a person subject to the obligation of professional secrecy has knowledge of, for example, a serious crime, it may be justified to disclose this information to the police.

Violation of the legal rules on confidentiality is usually punishable by a fine or imprisonment. Criminal liability also extends to anyone who wrongfully obtains or exploits information obtained through a breach of confidentiality. The same applies to the unauthorised disclosure of such information concerning the private affairs of other persons or relating to State security.