Equity’s Wergeld: Monetary Remedies for Emotional Distress by way of the Equitable Obligation of Confidence

Abstract

Many aspects of social and commercial life depend on our ability to confide secrets in others. The law, responsive to societal needs, developed the action for breach of confidence, traditionally offering relief through an order enjoining continued publication. However, in an era where instantaneous, irrevocable digital publication of information can be achieved by a single keystroke, such an order is no longer enough. Once online, the damage is done: the internet never forgets. It is settled that courts of equity may order equitable compensation as an alternative remedy for breach of confidence in commercial settings. However, courts have struggled to articulate a compelling jurisdictional basis for the same order in personal contexts. This article locates such a basis in a unified theory of equitable actions for breach of confidence: that the doctrine is a species of equitable fraud, and that it is this feature that justifies grants of monetary relief. While quantification methodology will differ between personal and commercial settings, there is no jurisdictional reason for monetary awards to be made in commercial contexts but not the personal.