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]