Bermuda Press (Holdings) Limited v Tamine

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.

(i) Whether there were serious issues to be tried;

(ii) Whether there was a risk of harm that could not be compensated for in damages; and

(iii) Where the balance of convenience lay.

(i) There was a serious issue to be tried. It had been open to the judge below to find that the affidavit was not sufficiently in the public domain so that there was no confidentiality or privacy left in its contents.  Moreover, the judge on the second application made by the appellant had been entitled to prohibit publication of the affidavit until it was clear whether the document was, in fact, made in sealed proceedings.

(ii) The court below had been entitled to find that the respondent would suffer harm that could not be compensated in damages if the injunction was not made.  Only an injunction would provide an effective remedy in privacy and confidence cases.

(iii) The balance of convenience lay in favour of the granting of the interim injunction. The affidavit had the necessary quality of confidence, which arose from the fact that it was a document relating to a private trust which had been filed in private proceedings and in circumstances where the court file had been sealed.  The persons who were likely to obtain the affidavit from the appellant’s website were Bermudians.  The scope of individuals who were aware of the availability of the affidavit on third party websites was lesser than the number of Bermudians who were unaware.  Moreover, it was unattractive for the respondent to rely on publication by third parties where those publications had been caused by the respondent’s own wrongful publication. Finally, as regards balancing the appellant’s right of freedom of expression of the respondent’s confidentiality rights, which was a relevant consideration under Bermudian law, the making of the injunction was reasonably required to protect the respondent’s confidentiality rights, to prevent disclosure of information obtained in confidence, and maintain the authority of the court.

The case is of interest for the court’s reluctance to discharge the interim injunction despite the relevant material being easily accessible via the Internet.

In addition, and relatedly, the case is of note for being an example where an injunction is granted on the basis of breach of confidence, but the judge has doubts as to whether an injunction would succeed on the same facts for misuse of privacy.