What are the legal options of those who face having their private financial affairs aired in public in the 'Paradise Papers' media frenzy?

At risk of stating the obvious, most of the documents which appear to have been stolen from offshore law firm Appleby by way of hacking (not, as much of the media seeks to suggest, as a result of a "leak") are confidential.

Anybody in possession of information which is plainly confidential is under an automatic legal obligation not to disclose it. The fact that there may not be any contractual duty to keep it confidential does not matter.

That will therefore include not only the hackers, but any journalist, newspaper publisher or broadcaster who has the documents (or the information in them).

Secondly, and separately, it may well be private information and therefore protected under Article 8 of the European Convention on Human Rights. The case law has established that such protection extends to personal financial information.

Our Courts are ready and willing to protect both confidentiality and privacy by granting injunctions to prevent publication of such information.

Care needs to be taken, however, that such rights are not inadvertently waived in the response to any media enquiries, e.g. by acquiescing in publication by providing comments or interviews.

The only realistic defence available to the media is that there is a public interest in its disclosure. However, it is much harder to establish a public interest defence than many journalists might imagine.

This was recently confirmed in the Court of Appeal when it upheld hedge fund Brevan Howard's injunction against Reuters, who sought to argue that there was a public interest in "exposing" the allegedly murky world of hedge funders. The Court gave that submission short shrift.

Thirdly, depending on the precise fact pattern, there may be liability under data protection legislation.

In addition, the Editors' Code of Practice prohibits the publication of material obtained "by the unauthorised removal of documents or photographs; or by accessing digitally-held information without consent".

The media is not therefore entitled to ride roughshod over the privacy and confidentiality rights of those who have chosen, often for perfectly sensible and entirely lawful reasons, to have some of their assets held in offshore structures.
Of course, if the documents in question disclose serious wrongdoing, let alone criminal offences such as money laundering, fraud or tax evasion, the media may well have a public interest defence.

But where such documents are confidential and/or private and would disclose only lawful steps to mitigate tax liability (no different in object or effect from investing in an ISA or a personal pension plan) then the media would likely struggle to provide any legal justification, no matter how newsworthy or prominent that person may be.

And even if that private information has already been put into the public domain, there may well be the option of recovering significant damages from those media organisations responsible.

Key Contacts

David Engel

David Engel

Partner, Dispute Resolution
London, UK

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