2nd March 2023
The publication this week by the Daily Telegraph of the WhatsApp messages of Matthew Hancock with several third parties was unusual and striking.
It was so unusual and striking that the first response of many was: surely there must be a law against this sort of thing.
And no doubt Hancock himself thought he was legally protected, having entered into (we are told) a Non Disclosure Agreement (NDA) with Isabel Oakeshott, the ghost writer of his recent book about his experiences as health secretary in dealing with the pandemic.
On available information, it appears the ghost writer has in turn disclosed the messages to the Daily Telegraph, and the newspaper then published a selection of these messages (we are told) without prior notice to Hancock or to any of the third parties with whom Hancock messaged.
The messages are certainly of interest to the public and, given the insights they provide into how government (and the media) dealt with the pandemic – especially in respect of what happened with care homes and testing – the publication of the messages can plausibly be said to be in the public interest.
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This post now sets out the general law of England and Wales in respect of NDAs and the public interest, and it then will apply that general law to what appears to be the facts of this incident.
In doing so, I have not had sight of the actual NDA which was signed between Hancock and his ghost writer – and, as will become apparent, a great deal can turn on the terms of a NDA.
For although NDA sounds as if it should be an acronym for a generic thing, there are many ways of framing a NDA.
NDA is not, in and of itself, a legal term of art, but instead a label of convenience.
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To understand NDAs you must first understand what it means not to have a NDA.
If there is not a NDA between two parties there will still be the law of confidentiality.
(Technically, confidentiality is not law but what is called “equity”, which is a set of doctrines and rules which complement law, but I hope I may be permitted to call it law for the purposes of this post.)
Confidentiality usually works as follows: person (A) imparts information to person (B) and when that information has (i) the quality of confidentiality and (ii) been imparted so that it is plain that it is considered confidential, the courts will protect that confidential information when they can.
If tests (i) and (ii) are met then person (B) will be bound to keep the information confidential.
This means that if person (B) wrongly discloses that information to another, or misuses the information, then (A) can obtain an injunction against (B).
(A) can also, depending on circumstances, obtain another remedy against (B) such as an “account of profits” of the monies made by (B) in wrongly disclosing or misusing that information.
Generally, the law of confidentiality is about the remedy of injunctions.
This is because injunctions are the supposed means that confidential information can remain confidential: the cork is put back into the bottle.
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So given there is already a general law of confidentiality, why do parties have NDAs?
There are many reasons.
First, NDAs can serve to identify and list the information which is confidential, so that there is no need to rely on the general test of whether the information has the quality of confidential information.
Second, the NDA will show beyond serious doubt that the parties were aware that the information was imparted on a confidential basis.
These two reasons supercharge the basic law of confidentiality so that the wronged party can show a court the two tests are met at law.
But there are other reasons why parties may want a NDA.
NDAs can provide the financial terms of the parties: in essence how much is being paid to the parties in respect of the exchange of information.
A strong NDA will also provide the financial consequences of what will happen if a party breaches the NDA, such as an indemnity or damages.
A NDA can also provide for the intellectual property position of the imparted information – for example, whether the receiving party also has a licence to use the information and for what purposes.
But.
Generally NDAs are signed as a ceremonial act of trust between the parties, a rite of passage.
Often people will ask for and sign NDAs without much consideration of their contents, so that they can progress with a commercial or media relationship.
NDAs also often suit both parties as a convenient shield, and a NDA can be used as the complete reason not to disclose something.
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NDAs, however, are not magical devices.
They do not, in and of themselves as signed pieces of paper, stop an unwanted disclosure – especially if trust breaks down.
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If party (B) wants to breach a NDA then there will often be little that (A) can do to stop them.
This is especially the case if (A) is not given notice of the breach.
For, as set out above, the law of confidentiality is generally about the remedy of an injunction.
And as injunctions are discretionary remedies of the court, they will not usually be granted if the court order would be futile or academic.
It would be too late to put the cork back in the bottle.
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So if (A) cannot obtain an injunction to restrain publication or some other wrongful disclosure by B, what is there for (A) to do?
Well.
This will come down to the other terms of the NDA – and often with NDAs there will not be other terms.
Sometimes, especially when it is foreseeable that party (B) will breach the NDA, there can be financial terms that would deter (B) from doing so.
For example, there could be structured payments that would not be payable in the event of any breach.
Or there can be an indemnity against the costs of dealing with the consequences of a breach.
But often the NDA will be silent, for – as set out above – the NDA is usually a convenient shield or a ceremonial ornament.
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And now we come to the public interest.
Even if (A) has been given notice of an imminent breach, if (B) pleads the public interest, then the court may not give (A) an injunction.
All (A) would then have, if they have been careful, would be other terms of the NDA.
The legal position was recently summarised by a judge:
“The modern (i.e. post-[Human Rights Act 1998]) approach as to the public interest defence is set out in the Court of Appeal’s judgment in Associated Newspapers Limited v HRH Prince of Wales […].
“The four main tenets can be summarised as follows:
“(1) There is an important public interest in the observance of duties of confidence since 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 (ibid at [67]).
“(2) The modern approach as to the circumstances in which the public interest in publication can be said to override a duty of confidence is whether a fetter of the right of freedom of expression is, in the particular circumstances, “necessary in a democratic society”. The test is one of proportionality: 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 (ibid at [67]).
“(3) It is arguable that a duty of confidentiality that has been expressly assumed under contract carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement; but the extent to which a contract adds to the weight of duty of confidence arising out of a confidential relationship will depend upon the facts of the individual case (ibid at [69] citing Campbell v Frisbee [2003] ICR 141).
“(4) Thus, in essence, the Court must 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.”
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Applying these four tests in the instant case, Hancock would say that as the messages had been disclosed to the ghost writer under a contract, this “carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement”.
Hancock would also say there was an “important public interest in the observance of duties of confidence since those […] 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”.
But.
The ghost writer would say “having regard to the nature of the information and all the relevant circumstances […] it is in the public interest that the information should be made public”.
Here the ghost writer would also be able to point to the material being supplied for a book on the pandemic, as well as to the contents of the messages.
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The Daily Telegraph did not sign the NDA and so would not be bound by its terms.
Hancock’s remedies, if any, against the Daily Telegraph would be under the general law of confidentiality, or perhaps under the law of misuse of private information, data protection law, or even copyright.
But whichever way he framed the claim, he would face (in some form) a public interest defence.
The position of third parties with whom Hancock messaged, however, may be stronger.
And one expects the Daily Telegraph legal team has been very careful in respect of third party information it is disclosing from the messages.
The Daily Telegraph must have had very bullish and robust legal advice on the public interest.
They also felt confident enough in their public interest defence not to give Hancock notice of publication.
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Hancock is today quoted as saying:
“There is absolutely no public interest case for this huge breach. All the materials for the book have already been made available to the inquiry, which is the right, and only, place for everything to be considered properly and the right lessons to be learned. As we have seen, releasing them in this way gives a partial, biased account to suit an anti-lockdown agenda.”
If Hancock sincerely believes that there is absolutely no public interest defence then presumably there is no bar to him seeking some form of legal remedy against either the ghost writer or the newspaper – for example to restrain publication of messages so far unpublished.
He could even seek to obtain an account of profits from the ghost writer or the newspaper if he believes they are acting uncocionably.
So far it appears that he may not take legal action, he also has said today (emphasis added):
“I will respond to the substance in the appropriate place, at the inquiry, so that we can properly learn all the lessons based on a full and objective understanding of what happened in the pandemic, and why.”
If he believes that, one may wonder why he published a book seeking to give his side of what happened before the inquiry.
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NDAs are usually ornaments or shields.
Unless they are tightly drafted and prudently structured, they offer little protection in practice to an imparting party if the other party deliberately breaches the NDA without notice.
As such NDAs are often articles of trust.
And here is the paradox: given NDAs often depend on trust, they usually are not needed, and if there is lack of trust, then the NDA can make little difference.
On the available information, Hancock was naive to believe a NDA would give firm, still less absolute, protection against onward disclosure of the messages.
And on the available information, there does appear to be a public interest in disclosure to the public of the messages – at least to the extent that they show public policy making and implementation in action.
As Hancock himself has published a book which has been described as misleading based on the same material, then he may struggle to get redress in respect disclosures which expose his own misleading account.
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We do not know what were the terms of the NDA – and so we cannot pass comment on whether the NDA was well drafted for its purpose or not.
But we can evaluate the wisdom of Hancock in thinking any NDA, on any terms, would protect him against onward disclosure of the messages by a counter-party willing to breach the NDA on the basis of the public interest.
It was a daft thing for him to do.
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If nothing else, I hope this episode will teach politicians and others to behave less like teenagers in these conversations and bear in mind that it is always possible that, if any party chooses, the chats may be revealed. And if they are, sides to their character that they may wish not to be made public may be laid bare.
Alternatively, imagine a world in which such on-line conversations were part of a real-time public record. That might require careful thought rather than hasty comment and lay bare much more.
Far better that they can chat freely amongst themselves but be required to have all decisions (with justifications) formally recorded for the public record. I’d be delighted if all such messaging was formally recognised as informal, deleted immediately after reading and impossible to print or screen-capture.
Probably best to stay away from Government https://www.gov.uk/government/publications/the-7-principles-of-public-life/the-7-principles-of-public-life–2
The partner that I report to gave me some great advice as a trainee: never write anything, in any context, that would make you feel shame if read back to you by a judge.
Think of how many scandals could be avoided, and careers saved, if that advice had more widespread adherence…
A counsel of perfection. IMHO. Luckily we are all human.
Another great amongst your excellent posts: so informative for the curious ignoramuses like yours truly!
Firstly – these communications were made by a public office holder and could be subject to FOI, and the department of health needs to check any FOI replies. I’m not convinced that this information is covered by NDA as the official secrets act applies – and the supplier of state owned documents in this instance was Hancock, after he lost his SoS powers and privileges.
Secondly, in general, don’t be surprised if the use of a ghost writer comes back to haunt you.
The Official Secrets and Freedom of Information angles are very interesting: suggesting, at one end of the spectrum, that some of this material should not have been disclosed by Hancock at all; and, at the other end of the spectrum, that some of the material would notionally have been subject to disclosure had anyone asked.
If such information had been FOI’d a department would likely decline to disclose under an exemption such as section 36: Prejudice to effective conduct of public affairs; but they would have to confirm if the information exists.
If the information is highly classified and crucial to national security a department can issue a neither confirm nor deny (‘NCND’) response as to whether it exists.
As soon as Hancock released the information it is in the public domain and outside FOI rules; it can’t be exempt from disclosure (already being disclosed) and its existence can’t be denied.
An interesting case on confidentiality & copyright (icymi?) is https://www.ucpi.org.uk/wp-content/uploads/2018/03/Lion-Laboratories-Ltd.-v-Evans-1985-Q.B.-526-CA.pdf… a case involving a newspaper’s intended publication of confidential & copyrighted documents. It has resonance for the now infamous Post Office IT scandal (the Law Commission’s recommendation leading to the acceptance of the reliability of computer evidence cited the Lion Intoximeter with approval)
“…Professor Vincent Marks, Professor of Chemical Bio-Chemistry at Surrey University, said: ‘The assumption made in current legislation that machines cannot lie and are foolproof is unmitigated nonsense!”
The public interest defence didn’t rely on iniquity by the company seeking the injunction… it was broadened to include the police use of a unreliable machine who’s use could solely provide evidence for a criminal prosecution.
Naive and daft – seems to sum up Hancock !
Thanks for this – very interesting.
Could the Telegraph also potentially face a claim from Hancock for inducing a breach of contract, ie the NDA? One assumes they would have had knowledge of the NDA and that receipt/publication of the messages would breach it. However, I guess they would also raise a public interest defence in response, and then of course there’s the question of what (economic) damage has been suffered and so what remedy there might be.
Thanks, David,
that’s very helpful.
To avoid the drip feed, it will be interesting to see if Mr Hancock applies for an injunction in relation to the rest of the 2.3M words that Ms Oakeshott disclosed to the Telegraph. Judging by her forceful and lively performance on the Today programme this morning, she appears to be in possession of significant personal information about Mr Hancock that she could disclose. He might prefer to let sleeping dogs lie. Nice case.
“Generally, the law of confidentiality is about the remedy of injunctions.”
Interesting that you say that. I’d always understood, probably incorrectly, that the remedies for breach of confidentiality tended to be damages, whereas the law of privacy involved injunctions.
No: if anything, the other way round.
It seems clear that the sole reason for early disclosure of these ‘lockdown files’ is to take pre-emptive advantage of revealing them in advance of the messages being used as part of the evidence considered by the inquiry.
For the reasons you have given (predominantly prior use by Oakeshott to ghost Hancock’s the ‘Pandemic Diaries’ as his own version of events) I can really see no argument that Hancock doesn’t recognise the records as being of public interest – he obviously thought they were when handed over.
As the information will certainly be part of the total considered by the inquiry it is difficult to imagine that it would not be reported upon in future. That reporting is likely to have other records to balance and compare the contents of WhatsApps against. When seen in the wider context, it is entirely likely that the argument that ‘lockdowns’ were terrible things, used solely for political purposes and with little, or no, public health benefits will be weakened. Hence, the value of the disclosed information may well be lessened as a means for those who were strongly (vehemently?) opposed to lockdowns to further their case.
Having listened to Oakeshott being interviewed on BBC Radio 4’s ‘Today’ this morning, I am in awe of the ease with which she has completed a “lifetime’s work” to evaluate key aspects of the pandemic response and reach such firm conclusions about lockdowns. She must have been ably assisted by legions of foot soldiers at The Telegraph, all working in the public interest. That work will have been much simplified by their knowledge of its conclusions in advance. All that these public servants will have had to do is find evidence to confirm their bias. I’ll wait for the inquiry’s findings and continue to avoid reading The Telegraph.
Am I the only person uneasy that government appears to be done via whatsapp? Given that Whatsapp messages can be made to disappear – and I bet Hancock wishes he had known about that function – using Whatsapp can thwart FOI requests.
Agreed. As a policy person I worry about the quality of policy made by text message. Whatever happened to the considered policy paper weighing up the pros and cons and reaching a considered conclusion. They don’t always take a long time to prepare, when needed urgently.
But isn’t the point that they don’t disappear, but exist permanently in the cloud where they can be accessed in certain circumstances by certain people and entities?
The IOC had previously advised government not to use WhatsApp and yesterday they repeated their call for a full review. https://ico.org.uk/about-the-ico/media-centre/news-and-blogs/2023/03/ico-statement-on-its-data-protection-and-freedom-of-information-remit-following-telegraph-reporting-of-whatsapp-messages-sent-by-matt-hancock-during-the-covid-19-pandemic/
I wonder whether a breach of confidence by a journalist might have implications for that journalist when seeking to encourage others to trust them and make confidential disclosures to them….
You would think so, but Oakeshott previously hit-and-running Vicky Pryce doesn’t seem to have prevented Hancock from trusting her. Away from the legalities, Hancock trusting Oakeshott with this information seems to be, at best, naive.
Very interesting, I feel this raises a couple of other questions:
1) Are there questions here relating to breach of the Official Secrets Act when he shared these messages with a journalist ? Indeed are messages relating to government business on a private WhatsApp / Phone covered (I would hope so).
2) did the good law project not win a case that put WhatsApp messages in scope for FOI requests? If so does this have any bearing on the NDA?
Any solicitor advising him when drafting the NDA will have made it clear that it had limitations. I addition to the NDA I would have thought there was a separate contract for the ghost writing. Would any payment by the Telegraph for the material weaken her “public interest “ defence?
This is a really important point.
‘Here are all my records to help with the book you are writing for me, don’t let any of this get out, you haven’t seen them, they don’t exist, Capiche?’
Very interesting. My own experience of NDA’s in the business world (print & electronic publishing) is that they can be very efficient protective mechanisms in the case of intellectual property if carefully written and properly executed.
What is more frivolously clear is that in this case it is very hard to decide who is the more egregious human being: the politician or the journalist. An imaginative – and as a consequence subsequently very popular – judge might consign them to ‘huis clos’ in perpetuity.
As you no doubt remind journalists, there is no such thing as ‘off the record’.
Funnily enough, my overwhelming feeling is pity for Oakeshott. A talented journalist, she has been reduced to tawdry ‘text and tell’ journalism acting as an attack dog for her sponsors. She looks increasingly jaded by the whole Brexiteer media merry-go-round but has no other place to go.
But who would ever speak to her again? It’s the media equivalent of burning your furniture to keep warm.
Meanwhile, she has achieved the impossible and made me sympathise with Matt Hancock. And so it goes.
You are kidding, aren’t you? I think her history shows she’s poison. But that doesn’t make me sympathise with Hancock!
Oakeshott has had an interesting career – revealing the pig in “Call Me Dave” (unverified and possibly fictional), persuading Vicky Pryce to spill enough beans to get both her and Chris Huhne convicted, leaking candid diplomatic messages that led to the resignation of Kim Darroch.
She had the zeal of the (self)righteous on Radio 4 this morning
Whatever the rights and wrongs of the disclosures, should these text communications be treated as being more akin to the ephemeral conversations that one might have in the corridor or on the sofa and which are rarely captured archived, or more akin to the memoranda and minutes of official meetings which form part of the public record? Or perhaps a new third category that needs to be collected and sifted?
Perhaps we need to insist that all official business is done on official devices that are archived automatically?
Are civil servants permitted to conduct official government business on their own private devices? If not, why are ministers allowed to do so?
Sort of. Use of personal devices was never banned, but the rules regarding security levels always applied and were reformed after the Child Benefit Data loss in 2007. The security level of the data determined the security level of transmission.
My department encouraged everyone to use a ‘Bring Your Own Device’ app, which provided a secure link from your smartphone to the departmental communication system. I did not use this because of my personal security concerns.
WhatsApp slipped through the net because it is pretty good security, but it’s public information. Ministers and private offices pushed for it to be used more, especially for support in the house during Questions or Bill debates.
Can you please clarify this? Are you saying that Ministers and private secretaries? encouraged messages to be sent via whatsap (as opposed to a ‘normal’ text) during Questions and debates.
If Matt was my employee, I would hope that there is no ;legal mechanism he could use to act in the course of that employment while concealing from me what he was doing.
And so similarly for elected representatives concealing what they are doing from their voters.
Obviously there may be other reasons why infomation cannot be disclosed – an employee assisting an investigation into their employer’s criminality, or things covered by Official Secrets. But those would be things where the prevention is not caused by the employee/politician.
We already knew the government is nasty and corrupt. The only thing which has reached my notice with this leak is the bizarre nationwide cat cull idea. And why not dogs as well?
You can’t compare cats and dogs, as anyone who has owned both will attest. Dogs loved lockdowns: cats ignored them [insert laughing emoji of your choice here].
I agree with Charles. (Congratulations! I disagree with so many people!). If I make an agreement with you, we’re entitled to privacy about its contents, which makes a NDA legitimate. But if I’m acting for someone else, I’ve a duty to keep him or her informed about what I’m doing and have done, as his or her agent. A politician acts for us. In a democracy, we are entitled to whatever information we may find useful in deciding how to vote. Hancock’s behaviour seem to me to be such information. It follows that it should not be hidden from voters.
So we have agreements with individuals, who are entitled to some level of privacy. Then we have actions of politicians that are not. Next we have the conduct of state agencies, serving the people. It is politically and morally wrong in my view to hide their actions from those they serve by sheltering behind NDAs. Then, matters of public security which may need to be kept permanently hidden. And then ongoing things, such as negotiations between parties with an obligation not to keep secrets, but where confidentiality while they are being worked out or negotiated may be essential in the short term.
Doesn’t it seem that legislation, not a series of judicial decisions, should govern NDAs?
But do you have a Government now that can be trusted to bring in good principled legislation?
Michael
I wonder if your legal analysis doesn’t underplay both the role of contract law in providing Hancock with rights against the ghost writer and the tort of interfering with contractual relations in providing a remedy against the Telegraph. Surely the most likely reason he’s avoided litigation is the cost, the adverse costs risk and the futility once the story is out there.