Reference:  EWHC 2293 (QB)
Court: High Court (Queen's Bench Division)
Judge: Sir David Eady
Date of judgment: 10 Jul 2014
Summary: Anonymous blog - disclosure order - breach of confidence - legal professional privilege
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Instructing Solicitors: Osborne Clarke for C; Davies and Partners for R
The Claimant (C), which had been given permission for anonymity by order of Kenneth Parker J dated 20 May 2014, was a company providing services to the UK and other governments. D & Co (R), the Respondents to the application, were a firm of solicitors. The Defendant (D) was their former client who was the author of at least 2 blogs in which confidential information was published.
C had reason to believe that D was a current or past employee. This was based not only on the nature of the confidential information disclosed but also on the terms of an undertaking given to the effect that he did not hold any confidential information other than “in connection with any employment relationship”. C wished to obtain D’s identity to assess the risks that he posed with regard to the confidential information.
D was in breach of an order made by Wilkie J whereby he was required to provide confirmation on oath that all the domain names and addresses used in connection with the blogs had been transferred to C, or deleted, and that he had delivered up confidential information. He had not complied with the order, and D wished to enforce it.
D had sought to provide assurance to C by means of a unilateral undertaking not to misuse the confidential information, and not to encourage anyone else to terminate or vary their contractual or employment relationship with the company. He had also undertaken both that the confidential information was held legitimately and that he would delete domains used in connection with the relevant blogs. However, he had not complied with the order.
C sought an order that R disclose D’s name.
Was the identity of R protected from an order for disclosure under its inherent jurisdiction or pursuant to its jurisdiction in respect of solicitors as officers of the court either
(1) absolutely, on the basis of legal professional privilege (LPP); or
(2) according to the settled practice of the court?
Dismissing the application
(1) Circumstances of confidentiality had surrounded D’s name at all times during R’s retainer by him. He had communicated his identity for the purpose of being advised by R and gave express instructions that he retained R on condition that his identity should not be disclosed. D disclosed his true identity only in the strictest confidence and for the purpose of obtaining advice and assistance. In light of this evidence, the information as to D’s identity was absolutely protected.
(2) Alternatively R’s identity was protected by the settled practice whereby the court should be slow to undermine the confidence attaching to a communication between a client and his solicitor. The public policy factors underlying the presumption were not outweighed by the specific circumstances of the case.
(3) Even absent this protection, there were powerful reasons not to override the duty of confidence. Information about D’s identity was not simply a piece of neutral background information, since he and R were aware that C was keen to establish his identity: it was central to their discussions about the retainer that confidentiality be maintained.
(4) In weighing C’s concerns about D’s breaches of confidence against the important public policy considerations underlying confidence and LPP, the judge considered the evidence that: the breaches of confidence took place some time ago; the blogs had been dormant for some time; and D had given a unilateral undertaking to protect C’s confidential information in the future.
Discovering the identity of those responsible for anonymous online publications is often a primary concern for those affected by them. Here, the application of LPP and the centrality of information about D’s identity to his discussions with R precluded any order for disclosure. But the judge did emphasise his reluctance in being unable to grant the relief sought, and the significance of the surrounding circumstances in refusing it.
The value and responsibilities attached to anonymous speech on the internet were a theme of Lord Neuberger PSC’s speech at Conference5RB. Lord Neuberger pointed out that the result was achieved under an entirely conventional application of well-established common law principles on confidential information and without any resort to the Convention.