The recent decision to prevent publication of information about Northern Rock is a reminder to journalists that injunctions for breach of confidence will not always fail because the subject matter is in the public interest or the material is available in the public domain.
It is well established that the courts will only restrain a defamatory publication in exceptional circumstances. However, where the claim is in breach of confidence, injunctions are more commonly granted prior to publication or before a trial, on the understanding that once information is published the ‘cloak of confidentiality’is lost forever.
The courts are well aware that injunctions represent the ultimate restriction on a journalist’s right to freedom of expression. They are required to carefully weigh up the balance of competing rights, such as the right to respect for private life and any other restrictions that are necessary to uphold, such as preventing the disclosure of information received in confidence.
Where information sought to be restrained is journalistic, the court is required to consider the extent to which the material has, or is about to, become available to the public. It will also consider whether it is, or would be in the public interest for the material to be published.
These issues were recently considered when Northern Rock was granted a temporary injunction restraining publication of information about the company contained in a sales memorandum provided to potential purchasers. Extracts of the memorandum had been published by The Daily Telegraph and others but no action had been taken previously by Northern Rock. The application for an injunction was prompted on 13 November by the posting in full of more than 10 pages of the memorandum on the FT.com website.
The judgment provides useful guidance for journalists. It is clear that the courts will not accept that simply because the confidential information relates to a matter of public interest, publication should automatically be allowed.
The issue is more closely focused on the particular confidential information that the claimant seeks to injunct. Is it in the public interest for this information to be disclosed? The starting point is that there is a public interest in upholding confidentiality agreements, which will only be overridden where there is a genuine public interest in disclosure.
The more detail a journalist intends to publish, the more it will be necessary to justify the public interest in such disclosure. In the Northern Rock case, a distinction was drawn between the extensive copying of sections of the memorandum on the FT website with previous publications in other media that were relatively short and less precise.
Journalists should carefully consider the extent and form of material already in the public domain. With Northern Rock, it was decided that the extent to which extracts from the memorandum had become available through previous publications was so great that to injunct them would be ‘futile”.
However, in contrast, there was a real possibility that information that had become available to the public only through the FT website had the potential to do harm that had not already been done, and was therefore subject to the injunction.
Journalists should always keep in mind any relevant privacy codes and in particular Section 3 of the PCC code of practice.
Tim Senior is a lawyer at David Price Solicitors and Advocates