I feel as if I write this same thing about once every year. Someone rushes to court to get an injunction preventing the release of information. It’s based on breach of confidence. Here it’s the Earthquake Commission seeking to prevent the release of a database containing assessments about 83,000 Christchurch claims.
The court grants the injunction, without notice to the other side. Usually, as here, there’s another hearing in the next day or two. The defendant scrambles to instruct a lawyer, and the lawyer has some very limited ability, on very short notice, to make some arguments. Then the interim injunction is confirmed. As here.
Collins J’s decision is available on the “decisions of public interest” page of the courts’ website – see Earthquake Commission v Unknown Defendants  NZHC 708 [pdf](Good on Justice Collins and the court staff for getting this up so promptly, by the way. That seldom happens).
And here’s the thing I always say. I think there may be good grounds for the injunction. But I am shocked that the court has failed to address basic aspects of the law.
The most glaring one here is that this is government information. In such cases, the plaintiff needs to go further than asserting and proving the basic elements of breach of confidence: that the information has the necessary quality of confidence, that it was imparted in circumstances importing an obligation of disclosure, and that unauthorised disclosure has occurred or is threatened. (Those are usually easy to satisfy). When a government agency wants to keep information secret it has to prove something more:
In the case of a government plaintiff, it will not succeed unless it can show that it is in the public interest to enforce secrecy.
That’s a quote from NZ’s leading textbook on media law (Burrows and Cheer, Media Law in NZ, 6ed, 288) citing authoritative UK and Australian authority. This is a significant hurdle for a government plaintiff and the EQC is a statutory body. How was it overlooked?
Even putting that aside, the blogger concerned put forward a defence of public interest. Once raised, that surely needs to be addressed in assessing whether there was a sufficiently compelling case to found an injunction. The judge didn’t even mention it.
How sufficiently compelling must that case be? Collins J applies an arguable case threshold. I’ve always felt that the Court of Appeal should be taken seriously when it said, in the Fahey case:
Any prior restraint of free expression requires a much higher threshold than the arguable case standard…jurisdiction to restrain the proposed publication is exercisable only for clear and compelling reasons.
This approach was endorsed by Henry J in the A-G of Wales case, who said a “stricter approach” may be required in breach of confidence cases when free speech is at stake (which will be most of them, I’d imagine.) That high threshold is applied in defamation and privacy cases.
Nor did the judge apply the Bill of Rights, despite the fact that he cannot by law grant an injunction that affects free speech rights unless he finds that to do so is demonstrably justified in a free and democratic society. The courts have laid down principles for assessing that. Not only did he not apply the Bill of Rights, he didn’t even refer to it. I would have thought there was a fair case to be made that the free speech interests here are strong ones: the blogger has alleged that the email reveals incompetent and biased claims assessment.
At the very least, you might expect the judge to weigh the general interest in free speech as part of the balance of convenience. Nope.
To repeat: I’m not saying the judge got this wrong. But in the absence of a proper analysis of the legal principles, he provides no reason for us to be confident that he’s got it right.
You may be interested in reading the blogger’s response to the Court’s approach, both before and after this interim injunction was confirmed. Not all of it seems convincing or cogent. And you’ll see that he starts off saying he’ll respect the court, but has ended up deciding to release the whole database sometime today in defiance of the ruling. It seems he’s claiming that he lives overseas, so if he stays there, he may well be beyond the reach of our contempt laws. (Incidentally, if he does publish the database, this would be yet another example of a plaintiff heading to court to try to gag information who later finds that this was utterly counterproductive).
But you’ll also see material on his website – some of which the blogger explicitly put before the judge, and some of which was posted before the judge released his decision – which the judge makes no mention of either: that he seeks anonymity to protect his sources; he was given no notice of the proceedings though he could easily have been emailed; that he believes the information is in the public interest (he goes some way toward explaining why); that he had been trying to release relevant parts of it only to those whose identities he was able to confirm; that he wanted to raise issues of jurisdiction, service, notice and venue; and that he sought an adjournment (without the injunction) to allow him to better prepare his defence. There’s also some pretty good evidence of public support for his stance in the comments threads, which might be relevant to his public interest defence, or to whether the government can establish that releasing the information would compromise the public good.
I don’t say that these points produce an unassailable case, or even that they’re all relevant or even helpful. He also rather ill-advisedly points out in the comments that:
My main regret is that this information is not as useful as I would like it to be, but it will undoubtedly be of use to tens of thousands who are unable to see their information.
But again, it’s a bad look for a judge not to mention any of that, even though he purports to summarise the blogger’s position (para ).
I keep whining that the courts often don’t take free speech seriously. This is why.
PS Some of the blame, perhaps, should lie on the shoulders of EQC’s lawyers, who are supposed to draw the court’s attention to relevant law, even if it goes against them. I don’t know what they argued, so I don’t know how much or little they presented.
I see that Mr Staples, the original recipient of the email with the spreadsheet on it, was represented by a lawyer who had to call in by phone (she was in Christchurch; the hearing was in Wellington). But her arguments, whatever they were, are not mentioned in the decision either. The decision mostly concerns the blogger, but the final order applies to anyone who received the spreadsheet.
This post originally appeared on the Media Law Journal blog and is reproduced with permission and thanks