June 1, 2021
The claimants issued proceedings against the defendants for misuse of private information and breach of confidence in relation to the alleged unlawful access, retention and deployment by the defendants of certain emails that the claimants said were private and confidential to them.
The defendants denied both claims. They also said that, in any event, even if the factual elements for either of the claimants’ claims were made out, they would be entitled to rely on the defence that there was a public interest in accessing, retaining and sharing the emails and the data contained in them. The defendants said that they had stumbled lawfully across the claimants’ private information (though the claimants alleged them to have broken into it) and then sought to retain that which the defendants claimed (and the claimants denied) to be evidence of wrongdoing by the claimants against creditors and insolvency officials, in order to pass it on to those officials and to relevant victims. In other words, it was in the public interest to access, retain and share the emails and data within such emails.
It was decided to try the question of whether this “iniquity defence” was available to the defendants as a matter of law as a preliminary issue.
His Honour Judge Paul Matthews, sitting as a Judge of the High Court, disagreed with the claimants’ argument that, following the enactment of Article 8 of the European Convention on Human Rights (ECHR), which provides for a right to respect for private life, the only defences available to a misuse of private information claim were those in Article 8(2) (no interference by a public authority) or Article 10 (freedom of expression) of the ECHR. HHJ Matthews said that Article 8(2) and Article 10 were in fact wide enough to cover the parameters of the public interest defence, as it is understood in relation to claims in breach of confidence. In his view, it was formalistic to worry about whether there was such a defence under that name in relation to claims for misuse of private information, or whether strictly speaking it was only the terms of Article 8(2) or Article 10 (or, indeed, some other Article) which could provide a defence. The real point was that the same facts being proved will potentially serve as a defence in both kinds of claim. As stated in Imerman v Tchenguiz [2011 Fam 116, “the law should be developed and applied consistently and coherently in both privacy and ‘old fashioned confidence’ cases”.
HHJ Matthews also rejected the claimants’ argument that the “iniquity defence” was not available even in relation to a claim for breach of confidence, unless the information was lawfully received by the defendant. Having examined the relevant authorities, HHJ Matthews decided that, neither on principle nor in caselaw, was there any support for the distinction in the availability of the public interest defence between lawful receipt and unlawful acquisition of confidential information. Whether the information was lawfully acquired or not was less important than whether the public interest in publishing it (whether narrowly to relevant regulatory authorities, or more widely to the media) was sufficient to overcome the public interest in the preservation of confidential information or the Article 8 right to respect for private life.
HHJ Matthews’ conclusion overall was that the claimants had not shown that the public interest (or “iniquity”) defence put forward by the defendants could not succeed as a matter of law. Accordingly, the defence was available to the defendants to argue should the courts find that the claimants’ confidence had been breached or their private information misused. (Nihal Mohammed Kamal Brake v Geoffrey William Guy  EWHC 670 (Ch) (25 March 2021) — to read the judgment in full, click here).