- Alert: Court of Appeal dismisses appeal in breach of confidence case (Brevan v Reuters)
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IP analysis: The Court of Appeal has dismissed an appeal by Reuters Ltd (Reuters) against an order of the High Court to grant an injunction to restrain publication in the media of confidential business information pending trial. Reuters had appealed the decision of the High Court on the basis that it had wrongly approached the question of the public interest defence. Its case was that the judge had wrongly adhered to case law pre-dating the Human Rights Act 1998 (HRA 1998) in believing that the paradigm case of public interest is where publication would correct a false impression or reveal wrongdoing or hypocrisy, and that, in the absence of such a factor, disclosure would only be permitted in the public interest if that was ‘vital’ and the case was ‘exceptional’. Furthermore, it argued that the judge had failed to conduct a proper balancing exercise because he had inappropriately adopted a sliding scale of information by type or category. In the circumstances, Reuters argued that the judge had given insufficient weight to a range of important matters of public interest when evaluating Reuters’ defence. The Court of Appeal was not convinced by these arguments. In particular, it made clear that different judges can legitimately reach different conclusions when carrying out the balancing exercise and that the appeal could only succeed if the judge had made an error of law or principle or if he reached a conclusion which was plainly wrong. In this case, the judge had applied the principles laid down by the Court of Appeal in Associated Newspapers Limited v HRH Prince of Wales  EWCA Civ 1776 (which post-dated HRA 1998 and was binding on the court). In that case, the Court of Appeal had held that there was an important public interest in the observance of duties of confidence and that, in the proportionality test, a significant element to be weighed in the balance was the importance in a democratic society of upholding duties of confidence that are created between individuals. It was not enough to justify publication that the information in question was a matter of public interest. The pre-HRA 1998 case law that the judge had cited was consistent with this finding and he was entitled to reach the conclusion that he had reached. In the circumstances, it dismissed the appeal.
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