Breach of confidence: public interest defence

Background

Everyone has the right to respect for their private and family life, home and correspondence (Article 8, European Convention for the Protection of Human Rights) (ECHR) (Article 8). Article 8(2) permits interference with the right to privacy where necessary in a democratic society the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The right to privacy must be balanced with the right to freedom of expression (Article 10, ECHR) (Article 10). This may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, including for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary (Article 10(2)).

Misuse of private information arises where a person has a reasonable expectation of privacy.

Facts 

B was dismissed by his employer, G. B applied for a final injunction and damages in respect of the alleged accessing, retention and deployment of emails said to be private and confidential and held within three email accounts operated by B at the time of dismissal. The disputed information had been shared with G's lawyers and some others, including B's trustees in bankruptcy.

G denied the claims and argued that, even if the factual elements for either of the claims were present, G would be entitled to rely on the defence that there was a public interest in accessing, retaining and sharing the emails and the data contained in them.

Decision

The court confirmed that, as a matter of principle, the public interest defence is available in relation to claims of misuse of private information, and in relation to claims for breach of confidence where the defendant has accessed the information unlawfully.

The reference to the rights of others in Article 10(2) is not a reference to, or restricted to, ECHR rights, because the "rights of others" are included in the list of other matters, including the prevention of the disclosure of information received in confidence. This has to extend beyond protection of purely private information, which is outside the scope of ECHR rights. Similarly, the protection of reputation was also not an ECHR right, although some attacks on a person's reputation might engage Article 8. The rights of others in Article 8(2) should be read consistently with Article 10(2).

The provisions of Articles 8(2) and 10 are wide enough to cover the parameters of the public interest defence in relation to claims in breach of confidence. The same facts being proved would potentially serve as a defence in both kinds of claim. The law should be developed and applied consistently and coherently in both privacy and breach of confidence cases.

The public interest defence was well established in English common law and so was foreseeable as a defence in accordance with the law under Article 8.

Whether G’s case was that its conduct was justified under Articles 8(2) or 10, or under the general public interest defence as adapted to fit those articles, was a matter of law. There was no need to plead, by reference to the documents disclosed, that it was necessary in the public interest for those documents to be disclosed. This was a matter of law for the court to decide after finding the facts. Similarly, whether the facts pleaded if proved meant it was in the public interest or for the protection of others' rights to disclose private information would also be a matter of law for the court.

If a disclosure is justified by the public interest, or as being for the protection of the rights of others, the justification is given by stating the facts and matters alleged to amount to such justification. There is no requirement to plead expressly what is the public interest concerned and who are the persons whose rights and what rights are being protected.

The public interest defence is available whether there is lawful receipt or unlawful acquisition of confidential information. Whether the information was lawfully acquired or not is less important than whether the public interest in publishing it, whether narrowly to relevant regulatory authorities, or more widely to the media, is sufficient to overcome the public interest in the preservation of confidential information or the Article 8 right to respect for private life.

There may be a public interest defence in the commission of past civil wrongs by private persons who have no public persona, in relation to both the misuse of private information and breach of confidence claims. Whether the importance of preserving confidentiality outweighs the importance of enabling a third party to seek a remedy for a civil wrong will depend on the circumstances. There is unlikely to be sufficient public interest in disclosing a single act of trespass which occurred years ago. However, there may well be sufficient public interest in disclosing recently committed significant frauds against many creditors. There is a considerable public interest in insolvency systems working as intended.

Given these considerations, the court could not conclude, as a matter of law, that G’s public interest defence would fail on these grounds.

Comment

This decision is of interest as it confirms that, in principle, the public interest defence, as understood in relation to breach of confidence claims, is available in relation to misuse of private information. The decision provides a useful explanation of the relationship between the existing public interest defence and the other defences under Articles 8(2) and 10. The confirmation that the public interest defence may be available, regardless of how the confidential information is obtained, is also a useful clarification.

Case: Brake and another v Guy and others [2021] EWHC 670 (Ch).

First published in the May 2021 issue of PLC Magazine and reproduced with the kind permission of the publishers.  Subscription enquiries 020 7202 1200.