The conflict between a claim for confidentiality and the open court or justice principle was recently considered by a Judge of the High Court of England and Wales.[1] The court resolved the competing demands concerning disclosing the names of journalistic sources in a dispute relating to letters written by Megan Markle.
Facts
The Duchess of Sussex, Meghan Markle, sued Associated Newspapers Limited for publishing articles In the Mail on Sunday and MailOnline. In the articles the defendant reported the contents of a letter that the plaintiff had written to her father and quoted extracts.
The defendant disputed the contents of the letter were private and confidential and denied that the plaintiff had a reasonable expectation it was or would remain private. The defendant said that the publication was made in pursuit of protecting the rights to freedom of expression of the defendant, its readers and Mr. Markle.
During the events leading up to the action, five individuals provided information for a favourable ‘exclusive’ article about Meghan which appeared in People, a US Magazine, under the headline “The Truth about Meghan’”. The article said that Megan’s best friends were breaking their silence to set the record straight about Meghan. To support its defence, the defendant asserted that the plaintiff had allowed information about her personal relationship with her father, including the existence of the Letter and a description of its contents, to enter the public domain. The defendant alleged that the publication of the People Article, and the widespread republication of its contents by other publishers, was something the plaintiff intended to happen. This was denied by the plaintiff.
The defendant sought production of the names of the five friends and other related information. The plaintiff provided the information but asserted that it was confidential and could not be disclosed. The defendant disagreed and threatened to report the information to the public.
As a result, the plaintiff applied to the court for an injunction and an order that the information designated by it including the names of the friends be designated as confidential and sealed so it was not available to the public. The plaintiff said her friends were confidential media sources who should be protected from media disclosure.
It was common ground that the fundamental common law principle of that applied was open justice and anonymity for parties and witnesses or third parties should only be granted if justified by some legitimate purpose, and necessary for the due administration of justice. In addition, each of the five friends gave her interview in return for an unqualified promise of confidentiality from People magazine and none of their identities has been publicly confirmed.
Decision
The Judge observed there was no issue that the identity of the friends was confidential. The defendant was well-aware of the importance of preserving journalistic source confidentiality. The defendant acquired the information in circumstances importing an obligation of confidence, subject only to any public interest that overrides that obligation. The plaintiff designated the information as confidential and clearly identified the factual basis for doing so.
The key question was how to resolve the competing demands of confidentiality and open justice. The preservation of anonymity must be shown to be necessary in the interests of the administration of justice. Open justice fosters public confidence in the impartial and fair administration of justice, deters inappropriate behaviour by the Court, ensures that evidence becomes available, and limits the risk of uninformed and inaccurate comment about the proceedings.
In applying the open justice principle, a court must consider the risk of harm which disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others. There may be good reasons for denying access. Some obvious ones are national security, protecting the interests of children or mentally disabled adults, protecting privacy interests, and protecting trade secrets and commercial confidentiality. In civil cases, a party may be compelled to disclose documents to the other side which remain confidential until they are used in the proceedings. But even then, there may be good reasons for preserving their confidentiality, for example, in a patent case.
In this case, there was no convincing explanation how the public identification of the five friends would assist in advancing the purposes served by the open court principle. The rights of confidentiality comfortably outweighed the value of disclosure. Confidentiality for media sources enhances freedom of expression and carries weight in a balancing exercise.
Continued anonymity upholds the agreement made between People magazine and the five friends, and the reasonable expectations which that generated. It also supports the proper administration of justice by shielding the friends from the “glare of publicity” at the pre-trial stage. It does not help the interests of justice if those involved in litigation are subjected to a frenzy of publicity. At trial, the considerations may be different and that is a price that may have to be paid in the interest of transparency.
The Court ordered that confidentiality be maintained and the court record sealed pending trial or further order at the pre-trial review.
Canadian Position
The jurisdiction to restrain a breach of confidence extends to third parties who have received confidential information. Third parties aware of the confidential nature of the information are subject to an obligation of confidence from the time the information is received.
The principles of confidentiality also prevent confidential information from being used in litigation. This is referred to as an “implied undertaking”. The principle applies where a party to a lawsuit obtains information through court-compelled production of documents or discovery testimony, which information could not otherwise have been obtained by legitimate means independent of the litigation process. In such a case the receiving party impliedly undertakes to the court that the private information obtained will not be used, vis-à-vis the producing party, for a purpose outside the scope for which the disclosure was made, absent consent of the producing party or with leave of the court. A failure to comply with the undertaking will be contempt of court.
Finally, specific confidential orders can be granted by courts in appropriate circumstances.
If you have questions, please contact mckeown@gsnh.com
John McKeown
Goldman Sloan Nash & Haber LLP
480 University Avenue, Suite 1600
Toronto, Ontario M5G 1V2
Direct Line: (416) 597-3371
Fax: (416) 597-3370
Email: mckeown@gsnh.com
These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.
[1]. 2020 EWHC 2160