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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