ABSTRACT
Artificial Intelligence (AI) technologies hold immense promises in healthcare, yet they also present safety concerns and a lack of trust among stakeholders. Governments have advocated for greater transparency in AI systems, including those used in healthcare, aiming to ensure their safety and reliability. Concurrently, much of the information pertaining to the development, validation and testing of AI systems is considered commercially confidential – or trade secrets – by AI developers. Despite numerous general assertions that trade secrets obstruct transparency around AI technologies, there has been scant research into to the nature of this issue and potential solutions in healthcare sector specifically. This article investigates the circumstances under which trade secrets may conflict with stakeholder demands for more information about AI-enabled medical devices. It also examines the extent to which the doctrine of breach of confidence, particularly the iniquity or public interest defence, can effectively balance interests of healthcare stakeholders. It concludes that the iniquity rule, as predominantly applied in Australian decisions, is too narrow to adequately address the legitimate information needs of healthcare organisations, clinicians and research organisations regarding AI-enabled medical devices. A broader public interest approach offers more flexibility and is more adept in balancing the interests of AI developers with those of public health interests. However, this approach also has its own limitations, and further legal solutions are needed to ensure sufficient transparency around AI in healthcare.
Matulionyte, Rita and Lee, Jyh-An, Transparent AI, Confidential Information and Public Interest Defence: Healthcare as a Case Study (October 17, 2025), Chinese University of Hong Kong Faculty of Law Research Paper No 2025-27.
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