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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Brevan Howard Asset Management LLP v Reuters Ltd & Anor [2017] EWCA Civ 950 (07 July 2017) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2017/950.html Cite as: [2017] EWCA Civ 950, [2017] WLR(D) 459 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE POPPLEWELL
HQ17X00846
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LONGMORE
and
LADY JUSTICE SHARP
____________________
BREVAN HOWARD ASSET MANAGEMENT LLP |
Claimant/ Respondent |
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- and - |
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REUTERS LIMITED & ANR |
Defendants/ Appellants |
____________________
Desmond Browne QC and Adam Speker (instructed by Schillings International LLP) for the Respondent
Hearing date: 28th June 2017
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Crown Copyright ©
Sir Terence Etherton, MR:
The background
"Disclaimer and Important Information:
This document has been provided specifically for the use of the intended recipient only and must be treated as proprietary and confidential. It may not be passed on nor reproduced in any form in whole or in part in any circumstances without express prior written consent from Brevan Howard. Without limitation to the foregoing any text and statistical or any portion thereof contained in this document may not be permanently stored in a computer, published, re-written for broadcast or publication or redistributed in any medium except with the express prior written permission of Brevan Howard."
Human Rights Act 1998 section 12 and Article 10 of the Convention
"Article 10
Freedom of expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"Freedom of expression
(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
(2) …
(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to-
(a) the extent to which-
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code.
(5) …."
The proceedings
The judgment
"There is always an important public interest in observance of duties of confidence as paragraph 67 of the Prince of Wales case makes clear. It is especially important in the context of disclosure to potential investors of material which is relevant to their decision to invest. It is highly desirable that full and candid disclosure is given for those purposes. If a hedge fund in BHAM's position felt at risk that sensitive commercial information disclosed in confidence could be published without restraint and in breach of the careful confidentiality restrictions sought to be put in place, with the potential for considerable damage to its business and disadvantage vis-à-vis its competitors, there would be a disincentive to make full and candid disclosure. In a democratic society there is a strong public interest in protecting such confidentiality so as to encourage such disclosure. If a financial institution could not provide such information with adequate protection of its confidentiality, it would be forced to be less candid with investors who would be less well-informed in making their investments. The interest in protecting the confidentiality is all the stronger where, as in this case, the disclosure is by a leading market participant and the investments in issue are measured in tens of millions of dollars."
"In my view, this outweighs any public interest in publication of the information".
The submissions on behalf of Reuters on appeal
"The traditional approach generally sought some positive public interest in publication: the exposure of wrongdoing, or of some item of information that it was vital for the public to know. That tended to divert the inquiry from one which sought to ascertain whether confidentiality was a sufficient reason to prevent publication to one in which the court asked whether publication would serve some pressing public interest. Although the presence of such an ulterior advantage may be important to how the balance is struck under Article 10, it is not in any sense necessary. The mere fact that the defendant wishes to provide information to the public is sufficient, in itself, to engage Article 10. Freedom of expression is not merely a right secreted in the interstices of a body of rules designed to protect other aspects of the public interest."
"50 A number of decisions of the Strasbourg court provide examples of situations where the public interest in the receipt of information protected by article 10 has prevailed over restraints on publication that were lawful under domestic law. In general the Strasbourg court views with disfavour attempts to suppress publication of information which is of genuine public interest. Where it relates to a matter of major public concern, even medical confidentiality may not prevail: Editions Plon v France 42 EHRR 36."
"67 … Before the Human Rights Act 1998 came into force the circumstances in which the public interest in publication overrode a duty of confidence were very limited. The issue was whether exceptional circumstances justified disregarding the confidentiality that would otherwise prevail. Today the test is different. It is whether a fetter of the right of freedom of expression is, in the particular circumstances, "necessary in a democratic society". It is a test of proportionality."
"148. … There are undoubtedly different types of speech, just as there are different types of private information, some of which are more deserving of protection in a democratic society than others. Top of the list is political speech. The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life. Intellectual and educational speech and expression are also important in a democracy, not least because they enable the development of individuals' potential to play a full part in society and in our democratic life. Artistic speech and expression is important for similar reasons, in fostering both individual originality and creativity and the free-thinking and dynamic society we so much value. No doubt there are other kinds of speech and expression for which similar claims can be made.
149 But it is difficult to make such claims on behalf of the publication with which we are concerned here. The political and social life of the community, and the intellectual, artistic or personal development of individuals, are not obviously assisted by pouring over the intimate details of a fashion model's private life. …
150 … such pieces are normally run with the co-operation of those involved. Private people are not identified without their consent. It is taken for granted that this is otherwise confidential information. The editor did offer Miss Campbell the opportunity of being involved with the story but this was refused. … What entitled him to reveal this private information about her without her consent?
151 The answer which she herself accepts is that she had presented herself to the public as someone who was not involved in drugs. … [T]he possession and use of illegal drugs is a criminal offence and a matter of serious public concern. The press must be free to expose the truth and put the record straight.
152 That consideration justified the publication of the fact that, contrary to her previous statements, Miss Campbell had been involved with illegal drugs. It also justified publication of the fact that she was trying to do something about it by seeking treatment. It was not necessary for those purposes to publish any further information, especially if this might jeopardise the continued success of that treatment."
"7. Public figures are persons holding public office and/or using public resources and, more broadly speaking, all those who play a role in public life, whether in politics, the economy, the arts, the social sphere, sport or in any other domain."
"89 Although the press must not overstep certain bounds, regarding in particular protection of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Thus, the duty of imparting information necessarily includes "duties and responsibilities", as well as limits which the press must impose on itself spontaneously (see Mater v Turkey No.54997/08, § 55, 16 July 2013). Not only does the press have the task of imparting such information and ideas; the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of "public watchdog" (see Bladet Tromsø and Stensaas v Norway [GC], No.21980/93, §§ 59 and 62, ECHR1999-III ; Pedersen and Baadsgaard v Denmark No.49017/99, § 71, ECHR2004-XI and Von Hannover (No.2) cited above, § 102). Furthermore, it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted in a particular case (see Jersild v Denmark, 23 September 1994, § 31, Series A No.298 , and Stoll v Switzerland [GC], No.69698/01, § 146, ECHR2007-V ). …"
"96 The Court reiterates that there is little scope under art.10 § 2 of the Convention for restrictions on freedom of expression when a matter of public interest is at stake (see, inter alia, Wingrove v the United Kingdom, 25 November 1996, § 58 , Reports of Judgments and Decisions 1996-V). The margin of appreciation of States is reduced where a debate on a matter of public interest is concerned (see Éditions Plon v France No.58148/00, § 44, ECHR2004-IV )."
"103 In this connection, the Court specifies that the public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree (see Sunday Times , cited above, § 66), especially in that they affect the well-being of citizens or the life of the community (see Barthold v Germany , 25 March 1985, § 58, Series A No.90 ). This is also the case with regard to matters which are capable of giving rise to considerable controversy, which concern an important social issue (see, for example, Erla Hlynsdóttir, cited above, § 64), or which involve a problem that the public would have an interest in being informed about (see Tønsbergs Blad A.S. and Haukom , cited above, § 87)."
"110 At this stage, the Court reiterates, having regard to the Government's argument that the article contained only a few lines on the issue of the child's status as a potential heir (see paragraph 68 above), that the only decisive question is whether a news report is capable of contributing to a debate of public interest, and not whether it achieves this objective in full (see Haldimann and Others v Switzerland No.21830/09, § 57, ECHR 2015 )…."
"113 Consequently, the Court considers that, although the impugned article admittedly contained numerous details which concerned solely private or even intimate details of the Prince's life, it was also intended to contribute to a debate on a matter of public interest (see [105]-[112] above), as submitted by the applicants both before the domestic courts and before the Court (see [30]-[33] and [52]-[53] above)."
"114 Having regard to the domestic courts' conclusions in this regard (see [104] above), the Court considers it useful to emphasise that the press's contribution to a debate of public interest cannot be limited merely to current events or pre-existing debates. Admittedly, the press is a vector for disseminating debates on matters of public interest, but it also has the role of revealing and bringing to the public's attention information capable of eliciting such interest and of giving rise to such a debate within society. Moreover, in view of the articles published in the Daily Mail and in Bunte (see [9] and [11] above), the Court notes that the child's status as a potential heir was already a matter of public discussion."
"55 Art.10 of the European Convention on Human Rights is not just about freedom of expression. It is also about the right to receive and impart information, a right which (to borrow Lord Steyn's metaphor in R. v Home Secretary, ex parte Simms [2000] A.C. 115 at 126) is the lifeblood of a democracy. The Deloittes report is on one view a set of contested opinions about the bidding process; but on another it is an expert and adverse evaluation of it, the very fact of which is of public importance. Whether or not undertakings of confidentiality had been signed, both domestic law and Art.10(2) would recognise the propriety of suppressing wanton or self-interested disclosure of confidential information; but both correspondingly recognise the legitimacy of disclosure, undertakings notwithstanding, if the public interest in the free flow of information and ideas will be served by it.
56 The difficulty in the latter case, as Miss Appleby's argument has understandably stressed, is to know by what instrument this balance is to be struck. Is it to be, in Coke's phrase (4 Inst. 41), the golden and straight metwand of the law or the incertain and crooked cord of discretion? The contribution which Art.10 and the jurisprudence of the European Court of Human Rights can make towards an answer is, in my view, real.
57 It lies in the methodical concept of proportionality. Proportionality is not a word found in the text of the Convention: it is the tool—the metwand—which the Court has adopted (from 19th-century German jurisprudence) for deciding a variety of Convention issues including, for the purposes of the qualifications to Arts 8 to 11, what is and is not necessary in a democratic society. It replaces an elastic concept with which political scientists are more at home than lawyers with a structured inquiry: Does the measure meet a recognised and pressing social need? Does it negate the primary right or restrict it more than is necessary? Are the reasons given for it logical? These tests of what is acceptable by way of restriction of basic rights in a democratic society reappear, with variations of phrasing and emphasis, in the jurisprudence of (among others) the Privy Council, the Constitutional Court of South Africa, the Supreme Court of Zimbabwe and the Supreme Court of Canada in its Charter jurisdiction (see de Freitas v Ministry of Agriculture [1999] 1 AC 69 at 80, PC) , the courts of the Republic of Ireland (see Quinn's Supermarket v Attorney-General [1972] I.R. 1) and the Court of Justice of the European Communities (see Art. 3b of the Treaty on European Union; Bosman [1995] ECR I-4921, 110).
58 It seems to me, with great respect, that this now well established approach furnishes a more certain guide for people and their lawyers than the test of the reasonable recipient's conscience. …"
Discussion
"32 Before the Human Rights Act 1998 came into force, the English law of confidence had recognised that there were circumstances where the public interest in disclosure overrode the duty of confidence, and that these circumstances could differ depending upon whether the duty was owed to a private individual or to a public authority. The present case raises the question whether the principles permitting publication of information disclosed in breach of an obligation of confidence require to be revised in order to give full effect to article 10 rights. …"
"There is an important public interest in the observance of duties of confidence. Those who engage employees, or who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential. Before the Human Rights Act 1998 came into force the circumstances in which the public interest in publication overrode a duty of confidence were very limited. The issue was whether exceptional circumstances justified disregarding the confidentiality that would otherwise prevail. Today the test is different. It is whether a fetter of the right of freedom of expression is, in the particular circumstances, "necessary in a democratic society". It is a test of proportionality. But a significant element to be weighed in the balance is the importance in a democratic society of upholding duties of confidence that are created between individuals. It is not enough to justify publication that the information in question is a matter of public interest. To take an extreme example, the content of a budget speech is a matter of great public interest. But if a disloyal typist were to seek to sell a copy to a newspaper in advance of the delivery of the speech in Parliament, there can surely be no doubt that the newspaper would be in breach of duty if it purchased and published the speech." [our emphasis]
"68 For these reasons, the test to be applied when considering whether it is necessary to restrict freedom of expression in order to prevent disclosure of information received in confidence is not simply whether the information is a matter of public interest but whether, in all the circumstances, it is in the public interest that the duty of confidence should be breached. The court will need to consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public."
"The third limiting principle is of far greater importance. It is that, although the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure. This limitation may apply, as the learned judge pointed out, to all types of confidential information. It is this limiting principle which may require a court to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.
Embraced within this limiting principle is, of course, the so called defence of iniquity. In origin, this principle was narrowly stated, on the basis that a man cannot be made "the confidant of a crime or a fraud": see Gartside v. Outram (1857) 26 L.J.Ch. 113 , 114, per Sir William Page Wood V.-C. But it is now clear that the principle extends to matters of which disclosure is required in the public interest: see Beloff v. Pressdram Ltd. [1973] 1 All E.R. 241 , 260, per Ungoed-Thomas J., and Lion Laboratories Ltd. v. Evans [1985] Q.B. 526 , 550, per Griffiths L.J. It does not however follow that the public interest will in such cases require disclosure to the media, or to the public by the media. There are cases in which a more limited disclosure is all that is required: see Francome v. Mirror Group Newspapers Ltd. [1984] 1 W.L.R. 892 . A classic example of a case where limited disclosure is required is a case of alleged iniquity in the Security Service. Here there are a number of avenues for proper complaint; these are set out in the judgment of Sir John Donaldson M.R.: see, ante, pp. 187B - 188H. Like my noble and learned friend, Lord Griffiths, I find it very difficult to envisage a case of this kind in which it will be in the public interest for allegations of such iniquity to be published in the media. In any event, a mere allegation of iniquity is not of itself sufficient to justify disclosure in the public interest. Such an allegation will only do so if, following such investigations as are reasonably open to the recipient, and having regard to all the circumstances of the case, the allegation in question can reasonably be regarded as being a credible allegation from an apparently reliable source.
…
Finally, I wish to observe that I can see no inconsistency between English law on this subject and article 10 of the European Convention on Human Rights. This is scarcely surprising, since we may pride ourselves on the fact that freedom of speech has existed in this country perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference is that, whereas article 10 of the Convention, in accordance with its avowed purpose, proceeds to state a fundamental right and then to qualify it, we in this country (where everybody is free to do anything, subject only to the provisions of the law) proceed rather upon an assumption of freedom of speech, and turn to our law to discover the established exceptions to it. In any event I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under this treaty. The exercise of the right to freedom of expression under article 10 may be subject to restrictions (as are prescribed by law and are necessary in a democratic society) in relation to certain prescribed matters, which include "the interests of national security" and "preventing the disclosure of information received in confidence." It is established in the jurisprudence of the European Court of Human Rights that the word "necessary" in this context implies the existence of a pressing social need, and that interference with freedom of expression should be no more than is proportionate to the legitimate aim pursued. I have no reason to believe that English law, as applied in the courts, leads to any different conclusion."
Conclusion