The respondent was a barrister at the Bermuda Bar and had become a witness for the prosecution in the criminal case against a man who had been charged with significant financial crimes in the United States.
The appellant publisher published four articles in print and online, which included previously unreported details about the respondent’s dealings with the defendant in the US criminal proceedings.
That information was taken from an affidavit made by the respondent in Bermudian proceedings that had been made subject to various anonymity measures, including the sealing of the court file. However, the affidavit had also been filed by the US Department of Justice in related proceedings taking place in the US. As a result, it had been placed online and was publicly accessible, subject to the payment of a small fee. As a result of it being placed online, the appellant obtained a copy of the affidavit and included information from it in its articles, as well as hosting an accessible copy of it on its website.
The respondent subsequently obtained an interim injunction from the Bermudian court requiring the appellant to remove from the articles all content taken from the affidavit and all hyperlinks to it. The appellant made two unsuccessful applications to the lower courts discharge the injunction.
On appeal, the appellant argued that the affidavit had lost the necessary quality of confidence because it was publicly available both on the US court website, on a further specialist publisher’s website and had been referred to in a non-anonymised form in a Bermudian judgment. On that same basis, the appellant argued that there could not be any reasonable expectation of privacy in the information, given its availability in the public domain. Further, there was no pressing need, such as a risk of harm, which the injunction sought to address.
In reply, the respondent submitted that the limited extent of publication of the affidavit was insufficient to negate the necessary quality of confidence. Moreover, the circumstances were not such that it could be said there was nothing left for the injunction to protect. The appellant’s journalist had known when publishing the articles complained of and making available the affidavit that it had been sealed in the Bermudian proceedings and, therefore a duty of confidence arose.