Public Interest in Whistle-blowing v Confidentiality

In another whistle-blowing case, we look at those who misuse their employers’ confidential information. Generally speaking they can expect to feel the full force of the law – but what if they claim to be ‘whistle-blowers’ acting in the public interest? The High Court confronted exactly that issue in the guideline case of Pharmagona Ltd v Taheri and Another (2020), with the judgment striking a balance.

The case concerned an IT specialist who was alleged to have hacked into his former employer’s computer system following his summary dismissal, downloading a large volume of the company’s confidential information. The company alleged that that amounted to a breach of his employment contract and a criminal offence. After launching proceedings against him, it sought a pre-trial injunction requiring him to deliver up or destroy any confidential information that was in his possession.

The man, however, argued that he had acted not for personal gain but with a view to exposing unlawful and criminal conduct on the company’s part. He claimed to be assisting public authorities in investigating the company’s activities and that its managing director had sought to discredit and silence him.

In ruling on the matter, the Court noted the valuable role in society played by whistle-blowers and that the man’s human right to freedom of expression was potentially engaged. There was evidence indicating that his allegations were not fanciful and there were cases in which the public interest in disclosing information trumped the public interest in preserving confidentiality.

In issuing an injunction, the Court found that the company would probably succeed at trial in establishing that the man would otherwise be likely to make use of its confidential information. Notwithstanding his public interest defence, the order restrained him from publishing the information to third parties or the world at large.

However, in a neat side step preserving his ability to cooperate with the authorities if required, the injunction did not actually require him to hand over or destroy the information, nor did it prevent him from responding to requests from public authorities for further information or documents concerning the company.

Our recent Tea Break outlines the basics of Whistle-blowing.

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