Breach of Confidence: The Public Interest Defence

William Leong Jee Keen

31 January 2020

The MAB Articles

Focus Malaysia published a series of articles about the future of MAB. Khazanah Nasional Bhd lodged a police report over the leakage of information. Focus Malaysia explained the articles were published because they were matters of public interest.

Focus Malaysia said Malaysians through Khazanah which is owned by the Malaysian government are the ultimate shareholders of MAB. Malaysians have a right to know what is happening to the national carrier whose values are being steadily eroded.

Public Interest Defence to Breach of Confidentiality Claims

Focus Malaysia has raised an important and interesting point on the defence of public interest by the media in relation to the disclosure of information in breach of confidential obligations by its informants or sources of the information.

The Importance of Media Freedom

I will not touch on the facts and issues of the Focus Malaysia’s articles of MAB because the case is under police investigation and is subject to potential litigation. Based upon a cursory research there is no Malaysian court decision touching directly on the public interest defence to claims for breach of confidentiality.

I wish to highlight some aspects of this defence’s development by the English courts for Malaysians to appreciate its importance for media freedom. The English judges have taken a robust approach in giving priority to disclosure of information which improves the quality of public debate and public opinion. Disclosure of matters of public interest serves to uphold democracy. It also acts as a check against abuse by those holding economic or political power. It is hoped that the Malaysian courts will give similar importance to media freedom in developing the public interest defence to breach of confidentiality claims. 

Development of the Defence by the English Courts

The equitable doctrine of breach of confidence seeks to protect confidential information provided by one party to another in circumstances which import an obligation not to disclose that information or to use it for unauthorised purposes. The rationale underlying the protection of relationships is to serve public interest. There are circumstances, however, in which the courts will refuse to protect information given pursuant to an express or implied duty of confidence on the basis that to do so would be contrary to other public interests.[1]

The approach in England has been to introduce a “public interest defence.” This requires the courts to balance the public interest in maintaining the confidence against a countervailing public interest in disclosure:

“…although the basis of the law’s protection of confidence is that there is a public interest that confidences should be protected by the law, nevertheless the public interest may be outweighed by some other countervailing public interest which favours disclosure.” [2] (per Lord Goff in what is famously known as the “Spycatcher Case”)

The Iniquity Rule

The public interest defence developed out of the “iniquity rule” in the 1857 case of Gartside v Outram[3] :

“The true doctrine is, that there is no confidence as to the disclosure of iniquity. You cannot make me a confidant of a crime or a fraud, and be entitled to close my lips upon any secret which you have the audacity to disclose to me relating to any fraudulent intention on your part: such a confidence cannot exist.”

The Court explained that no confidence comes into existence in respect of information of an iniquitous nature. A duty of confidentiality will not arise where the information relates to crimes or frauds. This is based on the public interest that confidential information may be disclosed to prevent the evil from occurring or to bring the offender to justice.

Misdeeds and Misconduct

In 1967, Lord Denning in the case of Initial Services v Putterill introduced the notion of “misdeeds” and “misconduct” to the iniquity rule:

“Counsel suggested that this exception was confined to cases where the master has been guilty of a crime or fraud, but I do not think that it is so limited. It extends to any misconduct of such a nature that it ought in the public interest to be disclosed…

The exception should extend to crimes, frauds and misdeeds, both those actually committed as well as those in contemplation, provided always – and this is essential – that the disclosure is justified in the public interest.” [4]

Just Cause or Excuse

Lord Denning further extended the scope of the public interest defence in the case of Frazer v Evans where he said:

“I do not look upon the word ‘iniquity’ as expressing a principle. It is merely an instance of a just cause or excuse for breaking confidence. There are somethings which may be required to be disclosed in the public interest, in which event no confidence can be prayed in aid to keep them secret.”[5]

By providing the test of “just cause or excuse” there was no longer a requirement for the commission of a crime, fraud or misdeed and that a notion of “public interest” can justify the breach of the duty to keep the information confidential.

In Malone v Commissioner of Police of the Metropolis (No.2), McGarry VC supported the extension of public interest defence. He decided that the defence is not restricted to cases of the claimant’s acts of misconduct or misdeeds:

“There may be cases where there is no misconduct or misdeed but yet there is a just cause or excuse for breaking confidence. The confidential information may relate to some apprehension of an impending chemical or other disaster, arising without misconduct, of which the authorities are not aware, but which ought in the public interest to be disclosed to them.”

The Balancing Test

The public interest defence has since developed to a stage where the courts adopt a new methodology of assessment. Once it has been determined that a claimant holds a reasonable expectation of confidentiality in the information, the court carries out a second stage of analysis of the claim by carrying out a balancing of all factors pertinent to the case to decide whether to maintain the confidentiality or to allow publication.

Lord Philips explained in HRH Prince of Wales v Associated Newspapers Ltd as follows:

“The test to be applied 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.” [6]

Constraining effect of Informed Public Opinion on Power Abuse

The key reason for the ultimate balancing exercise to fall in favour of publication will usually be the contribution that the publication has made, or is expected to make, to knowledge on some matter of public interest. In principle, the readily availability – often through the media – of the fullest range of information on matters of public concern and controversy is presumed to facilitate the emergence of an informed public opinion among members of the general population. Consequently, it promotes a constraining effect of public opinion on the arbitrary exercise of political, economic or cultural power. The concept of the “public interest” then serves as a measure of the contribution that publications make to the informing of individuals as citizens in the democratic polity. The service offered to the readers as the recipients of the information becomes the primary justification for media freedom.

Malaysian Courts and Media Freedom

Although the public interest defence has not been raised in any Malaysian case on claims for breach of confidentiality, the defence has been accepted in defamation cases.

The Federal Court in Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee accepted the defence of qualified privilege for the publication of defamatory statements in the public interest. Azahar Mohd FCJ said that the Reynolds privilege defence does not only apply to journalists but also to individuals:

“In our view, the public interest defence should by no means synonymous with journalists or media publications. On the ground of public interest, there is a sufficient basis it should be in the same way extended to anyone who publishes or discloses material of public interest in any medium to assist the public better comprehend and make informed decisions on matters of public interest that affects their lives.”[7]

The Malaysian Courts have also upheld the importance of the defence of fair comment in defamation cases in maintaining the freedom of speech and to adopt a generous approach to ensure the values are safeguarded. S Nantha Balan J (as he then was) said in Khairul Azwan bin Harun v Mohd Rafizi bin Ramli:

“As for the defence of fair comment, it was submitted that the right of fair comment is one of the fundamental rights of free speech and is of vital importance to the rule of law on which we depend for our personal freedom (Slim v Daily Telegraph Ltd [1968] 2 QB 157 (CA) at p 170). In this regard, it is said that in a society which greatly values the freedom of speech and safeguards it by constitutional guarantee, it is right that the courts when considering and developing the common law should not adopt a narrow approach to the defence. The courts should adopt a generous approach in its full vigour. Cheng Albert v Tse Wai Chun Paul [2000] 4 HKC 1, Li CJ at p 6E-G”[8]

The English Courts have developed the defence of public interest to breach of confidentiality claims. over an extended period of time. The Courts in Malaysia have not had the opportunity to do the same with. It remains to be seen that when such cases do finally reach the Malaysian Courts, whether our Malaysian judges will adopt a similarly robust approach for the protection of media freedom and public interest. Such an approach is necessary because of the “watchdog function” the media plays for the greater good of the nation.

In the same vein the media must also exercise responsible journalism. One important way of testing by the journalists themselves is by asking whether there is a public interest in the journalistic work to evaluate what the impact of the publication will be. How will publication affect the people – who will suffer and who will benefit? Does the wider society benefit from the publication? This is a difficult judgement and each case must be judged carefully on its own facts. At stake is not just the potential victims of poor reporting, but the reputation of the journalists and the media organization.

In the final analysis journalists and media organizations will have to be able to preserve their integrity and maintain their ethical balance to justify they are acting in the public interest whether in a court of law or in the court of public opinion.

   

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[1] Kaaren Koomen, Breach of Confidence and the Public Interest Defence: Is it the Public Interest? Kaaren Koomen has concisely traced the development of the public interest defence by the English courts which I have reproduced in this article.

[2] Attorney General v Guardian Newspapers Ltd [1988] 3 AER 545 at 659 per Lord Goff.

[3] Garthside v Outram [1857] LJ (Ch Div) New Series 113 at 114

[4] Initial Services v Putterill [1967] 3 AER 145 at 148

[5] Frazer v Evans [1969] 1 QB 349 at 362

[6] HRH Prince of Wales v Associated Newspaper Ltd [2006] EWCA Civ 1776 at [68]

[7] Syarikat Bekalan air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187 at 202 [33] FC

[8] Khairul Azwan bin Harun v Mohd Rafizi bin Ramli [2017] 9 MLJ 205 at 245 [81]

SHOULD MALAYSIA WAIT UNTIL NOVEMBER FOR TRANSITION?

WILLIAM LEONG JEE KEEN

Epitaph for Pakatan Harapan’s Reform

When Pakatan Harapan went to the polls in GE14 there were two fundamental promises:

-                  First, to carry out reforms in its Manifesto - the Buku Harapan consisting of 5 Pillars, 10 Promises in 100 Days, 60 Promises in 5 Years, 5 Special Pledges;

-                  Second, the leadership of the Pakatan Harapan Government will be a tag team with Tun Mahathir becoming the 7^th Prime Minister and Anwar Ibrahim becoming the 8^th Prime Minister.

The people voted Pakatan Harapan knowing full well the strengths and weaknesses of both men. Tun Mahathir with his strengths, tenacity and experience will be able to deliver on some but it would be unrealistic to expect him to deliver all of the promises during the first period with him as prime minister. Anwar Ibrahim in the second period as architect of the reform agenda is expected to deliver the rest of the promises, especially his proposal for affirmative action based on needs.

Definitely, the public expects this tag team of two to deliver the substantial reforms promised.

Tun Mahathir and his cabinet is now in the ring wrestling with the problems left behind by the previous regime. The country is in a bigger mess than was generally known before GE14. The going is tougher than expected. Tun says he needs more time because the problems are worse than was thought. One year is not enough, he said two years. Now he says he would hand over after APEC in November. There are people who asking him to stay on for the full term.

When should the transition take place? This is tonight’s topic.

The Pakatan Harapan government, the people voted in, is a partnership. Unlike the normal partnership where both partners work together at the same time, it is a partnership where one partner works first and then hand over to the second. The timing for the transition can be determined if we ask this question - what will the Pakatan Harapan Government’s legacy be at the end of its term?

If the transition is badly timed and the reforms failed it may read like this -

“Here lies one who meant well, tried a little, failed much:

surely that may be his epitaph, of which it is a crying shame.”

This is adapted from a quote used by Anne Kruger, acting managing director of the International Monetary Fund in her speech describing the failure of policy reforms in emerging market economies. She took the quote from one of the lesser known books of Robert Louis Stevenson called “Across the Plains”. The original quotation is this:

“Here lies one who meant well, tried a little, failed much: surely that may be his epitaph, of which he need not be ashamed.”

I changed the last part because an individual’s failure harm only himself even if he did not try too hard for which he need not be ashamed. But a reformer’s policy failure is catastrophic – millions of people suffer as a result – the poor, the jobless, the hungry.

In the case of Pakatan Harapan, it is a crying shame because the people presented Pakatan Harapan with the chance to carry out change on a golden platter. This should not be squandered.

The Reform Process

To appreciate when is the time for transition it may be useful to understand the reform process.

Reform does not happen automatically upon voting in the government. Voting in a new government is only the initial step in the reform process.

Based on a large body of policy reform studies by the Organization for Economic Co-operation and Development (“OECD”) the reform process requires overcoming tremendous political and technical challenges. Dealing with obstacles from policy design to strategies for reform adoption, implementation, monitoring and adjustments until the policy receives public acceptance. The challenges facing would-be reformers falls widely across both time and space.  The OECD concludes that making reform happen requires the government to “seize the moment” to successfully implement reforms.

Therefore, the question posed in tonight’s forum is not about choosing a date in the calendar like you are fixing a meeting, a dinner or a wedding. It is not whether May or November is better. It is about the seizing the moment where the conditions for change is right. It is determined by the changing conditions of the situation.

For now, this window of opportunity for change is rapidly closing.   

Meant Well

Going back to Robert Louis Steven’s quotation of Pakatan Harapan the would-be reformer’s legacy – the first part - “he meant well”: we have the foreword in the Mid-Term Review of the Eleventh Malaysia Plan. The Prime Minister wrote reforms include achieving inclusive growth must be carried out:

“The euphoria that greeted our success in taking over the Government after the historic 14^th General Elections on 9^th May 2018 came with a caveat – sweeping reforms and accountability must be the order of the day…

…As such, reform includes improving the governance, accelerating innovation, boosting productivity moving industries up the value change, enhancing the wellbeing of the rakyat, particularly the bottom 40% of the household income group (B40) and achieving inclusive growth.”

The Pakatan Harapan Government means well in carrying out its promises of reforms.

Inclusive growth requires dealing with the problems of identity politics which have risen its ugly head. Instead of inclusiveness, we are having greater social exclusion, more frequent hate speeches, bigotry, racial and religious intolerance. The polemics have grown to alarming proportions in the period after GE14. The political opponents and those who oppose the reforms have expectedly used race and religion in an attempt to win back popular support.  

Tried a Little

The second part of Robert Louise Stevenson’s quote – “tried a little.” The Pakatan Harapan Government carried out a part of the promises or is in the process of doing so but found it difficult to do all of the 60 promises. Unfortunately, in the past 19 months, good intention was not enough. It did not fully translate into action. As a consequence, a question of creditable commitment to the reforms has arisen. Tun Mahathir fuel this lack of commitment when he said:

“Actually, we did not expect to win, and we made a thick manifesto with all kinds of promises… We need to make sacrifices to fulfill our promises. If we can’t fulfil them, we will need a good reason that is acceptable to the people” - Dr Mahathir

This has caused much concern.

Failed Much

The third part of the quote - “failed much” depends on whether Anwar Ibrahim has sufficient time to design, implement and win over the citizens to accept the reforms, if not the reforms will fail.

The first determinant on the timing is the Twelve Malaysia Plan. The Twelve Malaysia Plan covers the period from 2021 to 2025. This is to be tabled in Parliament in the third quarter of 2020. Anwar must surely be the one tabling the 12MP because this is the roadmap for the reforms during his tenure as prime minister.

The second determinant on the timing is whether Anwar is given enough time to complete the reform process:

·                 Electoral mandate: Popular support for the reform. For Anwar to push through the reforms there must be a strong electoral mandate. There was a strong electoral mandate given in GE14 but the support has turned against Pakatan Harapan as shown in the Tanjung Piai by-election. Therefore, the transition must take place before the people’s goodwill and patience with the Pakatan Harapan Government runs out.

·                 Effective communications: There must be sufficient time given for Anwar to carry out consistent coordinated efforts to communicate and persuade voters and stakeholders on the need for the reforms and the costs of non-reform;

·                 Solid research and analysis: To put an end to emotional appeals on race and religious differences, of objections based on stereotypes of the different races, unsound unscientific based arguments, prejudices and stigma, OECD suggests that an evidence-based and analytically sound case for reform serves both to improve the quality and enhance the prospects for reform adoption. Anwar needs the time to carry out solid research and analysis of the root causes of the problems and to convince the stakeholders on the wisdom and benefits of the solutions;

·                 Leadership: According to OECD all assessments on making reform happen point to the importance of strong leadership. Successful reform requires government cohesion. If the government is not united around a reform proposal, it will send out mixed signals and opponents will exploit its divisions and defeat is usually the result. The call for strong leadership does not mean a top-down iron fist approach. Successful leadership is about winning consent from all stakeholders rather than securing compliance through compulsion. This takes time;

·                 Dealing with Opponents: It pays to engage with those who will be most directly affected by the reform. Inclusive, consultative policy process are no guarantee against conflict, but they seem to pay dividends over time, not least by allowing for greater trust among the parties involved. In dealing with the opponents of the reform, it need not involve compromises on the essentials of the reform, it is often possible to improve the prospects of particular groups that will be affected by a reform without contradicting its overall aim;

The third determinant of the timing is the political cost for reforms.

The IMF has published a note in October 2019 entitled “The Political Costs of Reforms: Fear or Reality.” Reforms have been successfully implemented and governments rewarded by grateful voters when the government acts swiftly at the outset of its term to exploit its “honeymoon” period. Overall gains and benefits to the people materializes gradually such that the reforms early in the term will show benefits at re-election time.

The IMF found that major reforms are associated with electoral costs when implemented in the year prior to an election. The results show a decrease in vote share of the coalition and reduction in the chance of the incumbent leader of the coalition being re-elected. This is because reforms may generate gains only in the longer term while they may engender short-term adverse distributional effects. This can prove electorally costly to the incumbent.

Time and efforts are needed to engage those most affected by reforms by mitigating the potential social and distributional costs. Finally, credible political commitment to the reforms including strong ownership and enhanced dialogue to garner support from business and civil society are key.

Making the Partnership Work:

If we take into account all these considerations the period for the transition to take place is limited. November 2020 may be too late. By then the one favourable moment in time to effect change may be gone and lost forever.

This country is in dire straits. Tun Mahathir and Anwar gave us hope when both agreed to bury the hatchet to work for the good of the country. In return the people put the fate of this country into the hands of this partnership. Pakatan Harapan is now the glue holding this society together. To save this country the mutual trust and confidence of the partners in each other, in this partnership, must hold.  At this crucial stage, we need this partnership to carry us through the rough seas of reform to the safe port of peace, unity and prosperity.

We are all tired of sex videos, gutter politics, bigotry, charges and counter-charges of racial prejudice and discrimination, you boycott my business, I boycott yours, frogs jumping in and out, back-door governments and back-door deals. We need sanity, rationality, good common sense and goodwill to pull all of us together. We are all in the same boat let’s stop shooting holes into it. If we continue, we will sink together. We need Pakatan Harapan to hold on together. Pakatan Harapan must hold tight onto the hands of the people. The people have given their trust to Pakatan Harapan.

We pray that our Pakatan Harapan leadership take charge and ensure the reforms this country, desperately needs, are implemented. To do this, a timely handover is important. I am sure you and I, all of us, want a smooth and certain transition.

Thank you,

William Leong Jee Keen

13 January 2020