FT.com must take Northern Rock memo offline, rules court

The newspaper obtained a memo prepared by companies advising troubled mortgage lender Northern Rock. The memo was for potential purchasers of the company and contained commercially sensitive information.

Northern Rock sued the Financial Times seeking a ban on the publication of the memo and of news based on the information contained in it. Justice Tugendhat in the High Court ruled that the memo must be withdrawn, but that news stories can be published.

"Much of the information in the Briefing Memorandum is in the form of detailed financial statistics and projections," said Tugendhat in his judgment. "The case for saying that this commercial information is confidential seems to me to be a strong one."

"There is no doubt that there can be a public interest in the publication of information which is the subject of a confidentiality agreement," he said. "But I can see no public interest in the publication at the present time of the unredacted and detailed commercial information which FT.com has published."

The mortgage company sought a temporary injunction to have the memo taken down while it waited on a full court hearing.

Northern Rock argued that whoever leaked the information to newspapers was under a double duty of confidentiality: first as specified in the memo itself, and secondly to his or her own employer. The employment contract would have included a confidentiality clause, the bank argued.

On the other side of the argument was the right to free expression contained in the Human Rights Act, said the judge. He said that his job was to weigh those two concerns.

"Information from the Briefing Memorandum which has become available to the public only through the FT website seems to me to be in a different category [from that in news reports]," said Tugendhat in his ruling. "It is detailed financial information of a kind that the courts commonly recognise as commercially sensitive. It seems to me arguable that there is a real possibility that further publication may do harm that has not already been done."

"I consider that the public interest in the enforcement of duties of confidence … is such that a short lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending the trial of the action," he said.