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'Businessman' injunction: what can and can't be published in press and social media

By Richard Miskella, partner

October 25, 2018 | 4 min read

The injunction is only the start of the legal battle to determine whether The Telegraph can eventually publish the allegations against the individual in question (ABC) and two of his companies.

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The injunction holds the status quo until the issues can be properly determined by means of a ‘speedy trial’. This is an accelerated form of proceedings designed to reach a final and binding decision quickly. Of course the trial will be in the High Court and that decision can also be appealed to the Court of Appeal and Supreme Court, so there won’t be an end to this any time soon…

The open judgement does not specify the exact form of injunction – presumably in order to maintain strict confidentiality over the allegations. The detailed injunction wording is presumably in the private ‘closed’ judgement. However the open judgement does state that the injunction applies to the Telegraph Media Group (TMG). The injunction was granted to stop TMG from publishing specific information which is said to have been disclosed to them in breach of confidence.

This means that it does not prevent anybody at all from disclosing the allegations.

If the information is disclosed in a way that amounts to ‘whistle-blowing’ as defined in the law, the whistleblower will be protected. This could protect the subjects of the NDAs, because NDAs are void in relation to whistleblowing ‘protected disclosures’ – so, for example, the individual complainant who supported TMG’s application could choose to ‘blow the whistle’.

In order to be a genuine protected disclosure in this context the whistleblower would have to believe that a breach of a legal obligation had taken place and that it was in the public interest to make the disclosure. They would also have to make the disclosure to a responsible body such as a regulator or the police, so they could not simply publish the allegations online and claim this protection.

Theresa May has already announced that a shakeup regarding the use of NDAs is in the pipeline, so watch this space.

Can it be reported outside of England and Wales?

It appears that the injunction only applies to TMG. If so, then if TMG discloses the allegations, directly or indirectly, anywhere in the world, it will be in contempt of Court. However, if persons other than TMG become aware of the allegations other than via the direct or indirect influence of TMG, they will be able to disclose the information – but they may still be sued for breach of privacy or defamation by ABC.

Can it be reported by non-British titles?

If non-British titles become aware of the information other than via TMG (for example, from the person(s) who originally informed TMG), then they could in theory publish the information as the injunction does not apply to them. However, they would be wise not to attempt to publish initially in England & Wales, because they would be vulnerable to the same action for an injunction.

Each jurisdiction has its own version of the rules determining whether there has been a breach of confidentiality, breach of privacy, or defamation in an article. For example, if the allegations were published in the US, and the publisher had two independent sources corroborating the allegation, that publisher would be protected from a defamation claim. If the information was published internationally then there could be no further value to the English injunction, and the TMG trial might even be abandoned.

What happens to anyone who leaks it on social media?

Anyone who is given the information by TMG and publishes will be vulnerable to possible claims such as inducing breach of contract for facilitating a contempt of Court, and so may themselves be subject to legal action. Anyone who becomes aware of the information without the direct or indirect influence of TMG can publish, subject to the risk of other claims such as breach of confidence or privacy, or defamation.

Richard Miskella is a partner at law firm Lewis Silkin

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