The Court of Appeal has dismissed an appeal by Reuters against an injunction granted by the High Court to hedge fund Brevan Howard, which prohibited Reuters from publishing certain commercially confidential information.
The news agency had got hold of information which had been provided in confidence by Brevan Howard to a small number of potential investors. Reuters approached Brevan Howard for comment, with the intention of running a story about it.
All too often in such scenarios, the focus is on deciding whether, and how, to respond to such media enquiries, without considering whether in fact the media outlet is even entitled to be in possession of such information. An ill-judged remark on the phone, or a hastily drafted press statement, can have the effect of throwing away all the company's legal leverage, for example by confirming that the story is correct and/or acquiescing in its publication.
Journalists of course know all this, and are often adept at eliciting a response which has the legal effect of giving them the green light to publish otherwise protectable information.
Evidently, Brevan Howard did not fall into any of those traps. It correctly identified that providing comment was not the relevant issue – the point was that Reuters had information they should not have and they could therefore be prevented from making it public.
The Court of Appeal has reiterated its well established willingness to prevent publication of commercially confidential documents or information. The decision is a useful reminder that there must be strong (stronger than many journalists might imagine) public interest arguments to justify the publication of confidential information.
It is not just a question of balancing a party's confidentiality right against the media's right to freedom of expression (which is more akin to the test applied in privacy and libel cases). The question to be answered, on a case by case basis, is whether the public interest in publication is strong enough to outweigh the public interest in ensuring that obligations of confidence are respected.
The case shows the seriousness with which the Court treats the protection of confidential information, including commercially confidential information.