Full case report

Barclays Bank PLC v Guardian News & Media Ltd

Reference [2009] EWHC 591 (QB)
Court Queen's Bench Division

Judge Blake J

Date of Judgment 19 Mar 2009


Summary

Breach of confidence – Injunction – Documents available on internet – Whether documents remained confidential – Human Rights Act 1998, s.12(4) – Freedom of expression – Public interest – Whether injunction proportionate interference with right


Facts

Internal documents belonging to B, relating to financial transactions that B planned to enter into between 2005 and 2007 with the intention that they would lead to a saving of tax otherwise payable, were leaked, apparently by an employee, to an MP. G obtained these documents and published them on its website at approximately 10pm on 16 March 2009. At around 2.30am on 17 March, Ouseley J was contacted and, after hearing from solicitors for B and for G, granted an injunction prohibiting publication of the documents until further order. By the time the matter came before Blake J at 3.30pm on 17 March, there was discussion of the documents on various websites, including reference to the fact that they had been made available elsewhere on the internet.


Issue

(1) Whether, given the level of dissemination that had already occurred, the documents were no longer confidential such that B could not satisfy s.12(4) of the Human Rights Act 1998;
(2) Whether, in the circumstances, continuing the injunction would amount to a disproportionate interference with G’s right to freedom of expression.


Held

Continuing the injunction, in modest terms, until trial or further order;
(1) Material that was not generally available to the public without a great deal of effort may not have lost confidentiality. B had a realistic chance of persuading the trial court that the dissemination to date had not destroyed the confidentiality of the material contained in the documents. Such further availability of the documents may have been a result of the publication on G’s web site and it was unattractive for G to rely upon publication by others if that publication was caused by G’s own wrongful publication.
(2) The documents were relevant to matters of legitimate public interest but debate could flourish without the publication of the documents in full. Parts of the documents were protected by legal professional privilege. G had no right to publish the documents unexpurgated and unedited, and any restriction on it doing so would not be a disproportionate interference with it’s rights.


Comment

This decision emphasises the principle that the presence of information on the internet will not necessarily strip that information of confidentiality. The circumstances of this case can be contrasted with those in Mosley v News Group, where Eady J refused to restrain the publication of material for which there was “no legitimate element of public interest” as the material was easily available to anyone searching the internet for it: “The Court should guard against slipping into playing the role of King
Canute.”

Websites on which the Barclays documents could be accessed were later named under the protection of Parliamentary privilege.


Instructing Solicitors

Freshfields for Barclays; Olswang for the Guardian


Links

Judgment