Brief Publication on a Web Site Does Not Necessarily Destroy Confidentiality Says English Court
Highly confidential information regarding the tax status of clients of Barclays Bank Capital Markets Division (Bank) was leaked by an employee to a Member of Parliament. Some of the information found its way to the Guardian newspaper (Guardian). For a period of approximately four hours the information was on the Guardian’s web site, until a Judge of the High Court, Justice Ouseley, issued a temporary injunction at 2:30 am requiring the removal of the information from the web site, prompting the judge in the motion reported here to remark that, “admirably … justice in this country never sleeps”.
On a motion to continue the injunction before Justice Blake, the Bank framed the relief sought in terms of an action for breach of confidence, in which it alleged that damages would not be an adequate remedy. While admitting that there had been some element of dissemination via the web site, the Bank argued that the subject matter had not ceased to be confidential. In response, the Guardian contended that the dissemination that had already occurred had removed the basis for the motion since the information could no longer be said to be confidential.
For the purposes only of the motion to continue the injunction, Justice Blake granted the motion until the trial of the main issue. He observed that although a general availability of material on the Internet would cause information to lose its confidentiality,
“there is guidance and observations that very limited dissemination and only partial dissemination, perhaps in some remote or expert site that is not generally available to the public without a great deal of effort, may not result in such a loss of confidentiality”.
As a result, it was left to the trial judge to make the determination whether confidentiality had been destroyed by the information becoming “freely available”.
For the full reasons for judgment of Justice Blake in Barclays Bank plc v Guardian News and Media Ltd [2009] EWHC 591 (QB), see:
http://www.bailii.org/ew/cases/EWHC/QB/2009/591.html
Summary by: The Editor
