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memo must be withdrawn, but that news stories can be published.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.
