People must disclose their most private matters to individuals with whom they have no personal connection. A patient reveals their illness to a doctor, a client discloses to a lawyer facts that may incriminate them, an account holder shows a banker the extent of their wealth, and a business owner shows an accountant the state of their company. This disclosure is not a choice but a necessity imposed by seeking the service, and the law therefore protects it by criminal sanction, making disclosure of a professional secret a punishable offence. Kuwait Penal Code No. 16 of 1960 criminalises the act, reinforced by professional regulation and data protection rules. This article explains the offence and its limits.
Who Is Entrusted with Secrets
The offence does not apply to everyone who learns a secret but to a defined category united by being entrusted by virtue of profession or office:
- Medical professionals: physicians, dentists, pharmacists, nurses, and other staff of health facilities who learn of a patient's condition.
- Lawyers: whose duty is among the strictest, extending to what they learn from clients even after the retainer ends, and even where the client disclosed incriminating matters.
- Financial sector staff: who by virtue of their work access clients' accounts and transactions.
- Accountants, auditors, and experts: including those appointed to examine the affairs of businesses.
- Public officials: as to individuals' data accessed by virtue of their office.
- Their assistants: such as secretaries, technicians, and translators, since the duty extends to everyone to whom the secret came by reason of the work.
Elements of the Offence
The offence requires a physical and a mental element, each with its own detail:
- Existence of a secret: the information must not be generally known, and the person concerned must have a legitimate interest in its remaining confidential. What is common knowledge is not a secret, nor is information touching no serious interest.
- Knowledge by reason of the profession: the knowledge must have been acquired in the course of performing the profession or office. A person who learns a secret by chance outside that framework does not fall within the provision, though other liability may arise.
- The act of disclosure: communicating the secret to another by any means, orally, in writing, by gesture, or by permitting access. It need not become generally known. Communicating it to a single person not entitled to know suffices.
- Criminal intent: knowledge that what is disclosed is a secret acquired professionally, and a will directed at disclosing it. An intention to harm is not required, and intent exists even where the motive was curiosity or boastfulness.
Lawful Disclosure
The duty of confidence is not absolute and is subject to defined exceptions that must not be construed expansively:
- Consent: where the person concerned expressly authorises disclosure the offence is negated, as the protection exists for their benefit. The authorisation must come from a person with capacity and be clear in scope.
- Legal authorisation: where the law requires reporting, such as notification of communicable diseases or suspicious transactions under anti-money laundering rules, disclosure is the performance of a duty and not an offence.
- Testimony before a court: a delicate question, since the person entrusted may be called to testify. In principle they may disclose only within the limits the law allows, and a balance is struck between confidentiality and the requirements of justice.
- Self-defence against accusation: a person entrusted may reveal so much of the secret as is necessary to defend themselves where accused by reason of performing their profession, within the narrowest limits required.
- Preventing an imminent offence: disclosure may be justified to prevent a serious offence threatening life or safety.
Business and Trade Secrets
Alongside personal professional secrets, secrets of an economic character enjoy separate protection:
- What is a trade secret: information of commercial value by reason of not being known, in respect of which the holder has taken reasonable steps to preserve confidentiality, such as client lists, cost prices, and manufacturing methods.
- The employee's duty: an employee must preserve the confidentiality of work secrets during and after service, and disclosure may justify termination and give rise to damages.
- Non-competition clauses: valid only where limited in time, place, and type of activity, and where they do not deprive the employee absolutely of their livelihood.
- Confidentiality agreements: should be concluded before any negotiations or due diligence, defining the information covered, the duration of the obligation, and the consequences of breach.
- Unfair competition: using another's trade secrets to gain an advantage constitutes unfair competition for which the actor answers civilly.
The Digital Dimension
Digital media have fundamentally changed the nature of risk in this field:
- Leaking an entire database has become possible in seconds, with consequences bearing no comparison to disclosing a single secret.
- Businesses bear obligations to adopt technical and organisational measures protecting the data they process, and failure may render them liable even where the act was an employee's.
- Sharing files through insecure applications or personal accounts is among the most common breaches in workplaces.
- A written policy classifying information, defining access rights, and logging access is advisable.
- Where a leak occurs, prompt containment, notification, and documentation are decisive in assessing liability.
Civil and Disciplinary Liability
The consequences of disclosure extend beyond criminal punishment, and several liabilities may coincide:
- Criminal liability: the penalty prescribed by law, aggravated where disclosure was accompanied by an intention to harm or to obtain a benefit.
- Civil liability: damages for material and moral harm, the moral element often predominating given the effect on reputation and privacy.
- Disciplinary liability: professional sanctions extending to removal from the register or revocation of a licence, in many cases more consequential than a fine.
- Contractual liability: where confidentiality is stipulated in a contract, the agreed liquidated damages may be claimed.
- Proving harm: the injured party must establish the harm and its connection to the disclosure, making documentation of the incident and its effect an indispensable first step.
Practical Guidance
- Professionals should adopt an internal confidentiality policy, train staff in it, and obtain express written undertakings from them.
- Do not discuss client matters in public places or in shared messaging groups.
- Obtain clear written authorisation before any disclosure and define its scope precisely.
- Those disclosing information should record what they disclosed and to whom, which assists in tracing the source of any leak.
- Conclude confidentiality agreements before sharing information in commercial negotiations.
- On discovering a leak, gather evidence immediately before it is deleted, then take advice on the appropriate course.
Confidentiality is not merely professional etiquette but a legal duty backed by sanction, and it is the foundation of the trust on which all professions rest. Yamnak Law Firm observes the highest standards of confidentiality towards its clients, advises on drafting confidentiality agreements and information protection policies, and conducts claims for damages arising from disclosure of secrets and data leaks.
