Case Summary and Outcome

The Court of Appeal upheld an injunction preventing the publication of confidential and commercially sensitive information, finding the public interest weighed in favor of protecting confidentiality over disclosure. Brevan Howard Asset Management (BHAM), a leading European Hedge Fund which manages numerous public pension plans, brought the action against Reuters to halt publication of articles based on leaked confidential documents. Reuter’s argued that the public had a right to know the economic information and that the injunction significantly infringed upon its journalistic rights and responsibilities. The Court found the lower court had properly conducted the balancing and proportionality exercises to determine the injunction was a “proportionate and a necessary restriction” on Reuter’s Article 10 right to freedom of expression and that the public interest in publication would likely not meet the necessary threshold to justify a breach of confidence. The Court concurred that the risks in disclosure were too great due to BHAM’s position in the financial markets managing tens of millions of dollars and that a breach of confidentiality could have a chilling effect on BHAM’s transparency with its investors.

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Facts

The appellants in the present case were Reuters Limited (“Reuters”), a well-known global media news agency and Maiya Keidan, who is a financial journalist employed by Reuters.

The respondent, BHAM, is a leading global alternative asset manager. BHAM is one of the largest hedge fund managers in Europe and its principal trading activities take place through the Brevan Howard Master Fund Limited (“the Master Fund”).

The case concerned confidential information BHAM had sent in an electronic package to 36 prospective professional investors. BHAM wanted these packages to be kept confidential. Thus, each recipient received a password protected document and the first page of the document was headed as “private and confidential”.

The package comprised seven documents, two of which were in the public domain. Reuters learned about the documents and obtained information in the documents from confidential sources, which it intended to publish.

On the anticipated day of publication, March 1 2017, Reuters contacted Peregrine Communications Group, BHAM’s communications advisors to verify the accuracy of the information. At Peregrine’s request, Reuters agreed to give six hours’ notice before publishing.

BHAM then initiated proceedings to halt publication of the confidential information and on March 10 2017 it applied for an order to seal the court file.  On March 13 2017 it issued an application notice for an interim non-disclosure order which was granted on March 16 2017 restraining the disclosure or use of information based on the 5 documents until the application could be heard.

The application engaged s.12 of The Human Rights Act 1998 as it sought to restrain Reuter’s freedom of expression protected by Article 10 of the European Convention on Human Rights (ECHR). Article 10 provides that everyone has the right to freedom of expression, which includes the right to “receive and impart information and ideas without interference by public authority and regardless of frontiers.”[para. 14] However, that right is subject to restrictions including for “preventing the disclosure of information received in confidence.”

Section 12 of The Human Rights Act (HRA) applies when a Court must consider granting relief which may impact freedom of expression protected under the European Convention. The HRA states that journalistic material receives special consideration to the extent which (i) the material has, or is about to become available to the public; or (ii) it is, or would be, in the public interest for the material to be published. [para. 15] Section 12(3), however, establishes a test for evaluating injunctions which requires the applicant to present sufficient evidence to establish that the publication should not be allowed and that there is a great likelihood that a permanent non-disclosure order would be granted at trial.

The application was heard in the High Court on 22 March 2017 by Judge Popplewell who delivered a an oral judgment to protect the confidentiality at issue, and subsequently released an abbreviated print version.

High Court of Justice Queen’s Bench Division Judgment

The primary issue before the Court was to determine whether freedom of expression, as protected under Article 10 of the European Convention, may justify breach of confidence where publication is in the public interest. [para. 21] Since Article 10 was engaged, the Court had to apply an enhanced merits test, over and above what is normally required for interim injunctions.

Referring to The Sunday Times v. United Kingdom, (1992) 14 EHRR 153 the Court recalled the principles established in Article 10. Namely, that the press’ role as a “public watch dog” means the press has as duty to impart information on matters of public interest and the public has a right to receive them. Any restrictions on the press must be “narrowly interpreted,” “proportionate to the legitimate aim pursued,” be “necessary” to meet a “pressing social need,” and any justifications must be “relevant and sufficient.” [para.18] Further, prior restraint requires “careful scrutiny on the part of the Court,” especially when it involves delaying a publication which could “deprive it of all its value and interest.” The Observer and the Guardian v. United Kingdom, (1992) 14 EHRR 153

The Judge stated that the circumstances of the present case clearly constituted a breach of confidence as defined in Terry v Persons Unknown [2010] EMLR 16:

“A breach of confidence occurs where (i) information has the necessary quality of confidence, (ii) it has been imparted in circumstances importing an obligation of confidence to the claimant and (iii) unauthorised use or disclosure is threatened. A duty of confidence arises when information comes to the knowledge of a person in circumstances where he has notice, or is held to have agreed, that the information is confidential.” [para. 20]

Based on the above, the information at issue likely had “the necessary quality of confidence” as it was released to a limited group of people, its confidentiality was “apparent from both its nature and the circumstances in which it was conveyed,” and it was clearly “sensitive commercial information” which had the potential to damage BHAM’s business if used by competitors. The Court also found that the information could only have been derived from the 5 confidential documents as no other source could be identified and Reuters could not provide evidence to the contrary.

The judge dismissed Reuters argument that the information was based on a “third party document,” finding Ms Keiden should have known by the nature of the information that it was confidential and if not, it was clear from the notice issued on 1 March 2017. Thus, the Court concluded that any disclosure would likely be an actionable breach of confidence. [para. 34]

The judge, examining the public interest defence in the present case identified the following facts in favour of publication:

1. BHAM is a very large hedge fund manager and the impact of hedge funds on the economy are a matter of public interest and debate;
2. The success or failure of hedge funds can have a material impact on institutional investors;
3. There have been, in recent past, lack of transparency in fees charged by them;
4. The institutional investors in BHAM include sovereign wealth funds, corporate and public pension plans and various foundations and endowments which makes information about components in the performance of BHAM’s funds a subject of public interest and debate;
5. The investors in the BHAM funds, potentially include institutional investors who invest the assets under their control ultimately for the benefit or detriment of pension plan holders, public employees and other individuals.

However, in cases involving Article 10, the right to freedom of expression must be carefully balanced with the right to confidentiality depending on the facts in each particular case.  The Court emphasized that in addition to the public interest in receiving information, there is also a public interest in protecting duties of confidence since individuals must be able to disclose confidential information in certain circumstances without fear of it becoming public. Thus, where there is a breach of confidence, the test is not simply whether the information is a matter of public interest, but rather whether, in the circumstances, it is in the public interest that the duty of confidence should be breached. [para. 22]

In the present case, the context would likely weigh in favor of the maintenance of confidence over any public interest in publication. BHAM’s business model demands full and candid disclosure to potential investors which could be chilled without full assurance of confidentiality. That could result in harm to the public interest in so far as it could lead to financial institutions making limited disclosures to investors, in turn leading them to make less informed choices in future. [para. 33] Moreover, as BHAM is a leading investment fund, disclosure of sensitive commercial information could put tens of millions of dollars at risk.

The Court discussed the applicability of the “iniquity rule,” which would weigh in favor of breaching confidentiality to serve the public interest by revealing illegal activities, incompetence, or improper practices. In the present case, there was neither any “iniquity” to reveal, nor any other “vital public interest” at stake to justify publication.

The Judge, further referred to the IPSO Code which lists matters in the public interest. While the issues in the present case were in the general public interest, none of the listed matters applied and therefore, the public interest value of the information was considered low.

Based on the above, the Court concluded that BHAM would likely succeed at trial to establish that an injunction on publication was a “proportionate and a necessary restriction” on Reuter’s Article 10 right to freedom of expression and that the public interest in publication would likely not meet the necessary threshold to justify a breach of confidence. Damages would also likely not be an adequate remedy as they would be difficult to assess which further strengthened the argument for injunctive relief.

Reuters’ Submissions on Appeal

Reuters argued that the Judge incorrectly applied restrictive pre-HRA law relying on the “iniquity rule” or only permitting disclosure of confidential information in “exceptional” circumstances where disclosure was “vital” for the public interest. [para. 40]

According to Reuters, the Judge should have applied post-HRA law which allowed for more of a balancing of interests.  This approach is based on an understanding that Article 10 is engaged for all instances where information will be provided to the public, and “shifts the focus from asking whether confidentiality was a sufficient reason to prevent publication to one in which the court asked whether publication would serve some pressing public interest.” [para. 42]

Reuter’s argued four additional key points.

First, it recalled that Lion Laboratories established “a general defence of public interest to claims for breach of confidence,” to take precedence over the outdated “iniquity rule.”

Second, the necessary balancing exercise requires the court to weigh “the public interest in maintaining confidence against a countervailing public interest favouring disclosure.”

Third, post-HRA law provides a greater range of circumstances where the public interest in publication may outweigh any duty of confidence. For example, Prince of Wales, stated the European Court sets a high bar based on a proportionality test which considers whether the restriction, in light of the relevant facts, is “necessary in a democratic society.”

Fourth, economic information, as in the present case, is of significant public interest. Reuters cited Campbell v MGN Ltd [2004] UKHL 22 to underscore that “[t]he free exchange of information and ideas on matters relevant to the organization of the economic, social and political life of the county is crucial to any democracy.” [para. 44]  Further, according to Couderc v. France, (2015) 40 BHRC, “there is little scope under art. 10(2) of the Convention for restrictions on Freedom of Expression when a matter of public interest is at stake,” such as issues that “give rise to considerable controversy,” involve a “problem the public would have an interest in being informed about,” or “affect the well-being of citizens or the life of the community.” [para. 103]   

The Court’s duty in the present case, according to Reuters, was not to rely on its own discretion but to employ a proportionality test.

Reuter’s attested that it has a global reputation for upholding professional standards and that the injunction would undermine its role as a public watchdog, prevent not only people in the UK from receiving the information but also audiences from other jurisdictions such as the United States. Most importantly, the injunction prevents the publication of important facts relevant for future investors and necessary for citizens to hold their pension providers to account. [para. 50]

Reuter’s claimed the Judge failed to take into account the “limited nature” of the information, that it should fall within the public interest principle as it was of general public interest, that the injunction significantly infringed upon Reuter’s journalistic rights, and that Reuters gave BHAM every professional consideration regarding the intended publication. They further argued that there was no evidence that the disclosure could have a chilling effect on BHAM’s transparency or communications with its investors, and that irrespective of the injunction, BHAM is “under no obligation to be candid” about its investments.

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Decision Overview

The primary issue before The Court of Appeal (Civil Division) was whether the High Court Justice made an error of law or principle, or reached a wrong conclusion while carrying out its balancing exercise to assess the proportionality of granting the injunction.

The Court began by providing a detailed summary of the High Court’s ruling and Reuter’s submission on appeal. (see Facts section above) The Court then opened its discussion by finding that the High Court Judge made “no error of principle or law,” and that the granting of the injunction was “a proportionate exception to Reuter’s right to freedom of expression under Article 10.” [para. 59] The Court therefore dismissed the appeal.

The Court noted that the Judge correctly relied on the post-HRA precedent set in the Prince of Wales case which required a proportionality test that took into consideration “the importance in a democratic society of upholding duties of confidence that are created by individuals.” In other words, in such cases a court must assess whether there a public interest in breaching a duty of confidence. The Court considered the proportionality test to be an important “tool” to assess whether a restriction met a “pressing social need”, “negated the primary right or restricted it more than necessary,” and whether the reasons given for it were logical. [para.57] In the present case, the Court did not find there was a public interest in breaching the confidence.

The Court rejected Reuter’s arguments related to Campbell and Couderc on the grounds that the present case involved information “imparted and received in confidence.” [para. 62] It recalled that Article 10(2) lists confidential information as a legitimate category for restriction.

The Court found that the Prince of Wales case was consistent with domestic jurisprudence (see Attorney-General v Times Newspapers Ltd [1990] 1 AC 109 at 282-284) as well as with the standards of the European Court and established restrictions. It cited Markt Intern and Beerman v Germany (1990) 12 EHRR 161 to note that under exceptional circumstances, the confidentiality of commercial information could warrant a legitimate restriction even on true information in the public interest.

Correcting Reuter’s interpretation of the Judge’s reference to Lion Laboratories, the Court explained that Lion made clear that “significant matters of public interest are not confined to the disclosure of iniquity.” [para.69] However, it again cited Wales to stress that “there must be a sufficiently significant matter of public interest in favour of publication to outweigh the public interest in the observance of duties of confidence.” [para. 69]

The Court then proceeded to reject the remainder of Reuter’s arguments.

It did not agree that the Judge had wrongly applied pre-HRA law or misapplied the ruling from Prince of Wales.  The Court affirmed the Judges reasoning that the information at issue had a low public interest value and was not comparable to the LRT ruling where an injunction was set aside to allow publication as long as sensitive commercial information was redacted. The Court also rejected the alleged “sliding scale” approach to assessing the public interest value of information and upheld the Judges weighing of the public interest in confidentiality over the public interest in publication on the ground that the risks in disclosure were too great due to BHAM’s position in the financial markets. It further concurred with the Judges assertion that disclosure could have a chilling effect on BHAM’s transparency with its investors, and that BHAM has an interest in maintaining good investor relations, regardless of its legal obligations.

The Court also did not find that the potential loss of a story for Reuters outweighed the public interest in confidentiality of the commercial information. It was also not persuaded that the global audience had any legal claim to receive the confidential information under their respective national laws. Reuter’s adherence to professional practices was also found to be irrelevant under the present circumstances. It further rejected Reuter’s argument regarding the difficulty of calculating damages and upheld the Judge’s conclusion to grant the injunction.

The Court dismissed the appeal.

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