We are all aware of the recent difficulties faced by Northern Rock which led to understandable panic by account holders attempting to withdraw funds from the financial institution after the Bank of England intervened in its affairs. On 13 November 2007, Mr Justice Tugendhat granted an interim injunction restraining publication of “certain information about the claimant set out in a document entitled ‘Briefing Memorandum’.”
The Briefing Memorandum was a detailed document prepared by Northern Rock for potential investors and contained details of Northern Rock’s proposals for such investment. There was a condition in the Briefing Memorandum that receipt by the potential investor was subject to keeping the information it contained strictly confidential.
The Daily Telegraph Article
On 8 November 2007 the Daily Telegraph published details of the Briefing Memorandum which had been leaked to it, the article stating that the Daily Telegraph had actually seen the Briefing Memorandum.
At that point, Northern Rock considered its position but, somewhat surprisingly considering the sensitive and confidential nature of the information, decided not to take further action against the Daily Telegraph although draft injunctive proceedings were prepared. Instead, Northern Rock’s public relations advisors made approaches to various newspapers asking them not to make further publication of information from the Briefing Memorandum.
The Financial Times Article
Following the article in the Daily Telegraph on 8 November, on 13 November the Financial Times published an article containing large sections of the Briefing Memorandum in full on its ‘Alphaville’ website. On the same date, information from the Briefing Memorandum was published by several other publications including the BBC, the Guardian, the Evening Standard and Reuters.
This time, Northern Rock took immediate action and applied for an injunction against both the Daily Telegraph in respect of its 8 November article and the Financial Times in respect of its 13 November article.
Two Different Outcomes
The Judge accepted that, with respect to the Financial Times article, “there may be some force in the concerns held by the claimant that publication of such detailed information might well be very harmful” and consequently that the “case for saying that this commercial information is confidential seems to me to be a strong one.”
The Financial Times argued that the information had already been made public some five days earlier in the Daily Telegraph article and no injunction should therefore be granted. The judge said, however, that the test for deciding whether information had become public, and therefore whether injunctive relief should be refused, requires a “qualitative and not just a quantitative assessment”. Simply because certain information had already been made public did not lead to the automatic conclusion that injunctive relief to restrain further publication would not be granted.
The judge also dismissed the submission that there was a public interest in the disclosure of the information. Whilst acknowledging that “there is no doubt that there can be a public interest in the publication of information which is the subject of a confidentially agreement” he could not see any “public interest in the publication at the present time of the unredacted and detailed commercial information which FT.com has published.”
However, the judge refused to grant injunctive relief in respect of the Daily Telegraph article and the publication of certain information from the Briefing Memorandum by other publications, citing as his reason that “the extent to which they have become available to the public is so great, that an injunction would be futile.”
The judge therefore granted an injunction to prevent further publication only of the information from the Briefing Memorandum made available through the Financial Times’ website. Any information made available before 13 November not via the Financial Times’ website was free to be republished.
Comment
The reason given by the Judge for granting the injunction against the Financial Times but not against the Daily Telegraph was that “There is … a distinction to be drawn between the extensive word for word copying of whole sections of the Briefing Memorandum on the one hand, as has happened in the case of the FT website, and the relatively short and much less precise publications in the other media referred to.”
It is difficult to see why an injunction was granted in respect of the Financial Times article given that the information, albeit perhaps of a more limited nature, had already been published five days earlier by the Daily Telegraph. It would therefore appear that even if information is of the same nature and from the same source (in this case, the information contained in the Briefing Memorandum), the extent of the precise detail included in a publication may affect whether it is subject to an injunction or not.
It is also difficult to understand why Northern Rock was not more radically penalised for failing to seek injunctive relief when the Daily Telegraph article appeared, given that the likelihood of the information being republished, and indeed, of the full content of the Briefing Memorandum being published, was so high. The deployment of a PR company rather than lawyers in these circumstances was puzzling.
With regard to the public interest argument, it is a difficult balancing exercise for a judge to undertake in deciding whether or not it is in the public interest for sensitive confidential information to be made public in this way. If it is not in the public interest to protect confidential material about an ailing bank with which millions of members of the public, and subsequently the tax payer, have invested significant amounts of money, then what would qualify for such protection? The respectable counter argument is that all those are good reasons for the investor/taxpayer to be told of just such information by the media.