Protect your Confidential Information: Does the Right to Freedom of Expression Outweigh Confidentiality Obligations?

Does an individual’s right to the freedom of expression take precedence over confidentiality obligations owing to their employer?

No, was the decision of the High Court in the case of, Linklaters LLP v Mellish.

Lisa Moore, Employment Solicitor in our Birmingham Officeconsiders the outcome of this recent case which balances the Articles of the European Convention on Human Rights (‘Convention rights’) against the duty of confidentiality.

In this case, Mr Mellish was employed by Linklaters as Director of Business Development and Marketing. He was subject to an express confidentiality provision as detailed in his contract of employment. Following the termination of his employment, Mr Mellish notified his ex-employer that he planned to, ‘share his impressions of the current culture at Linklaters’ along with what was described as, ‘the ongoing struggle Linklaters has with women in the workplace’ and provided various examples of his concerns.

Consequently, Linklaters issued an application for an injunction to restrain disclosure of confidential information; namely, to protect the names of the individuals involved along with some details relating to the relevant matters. The confidential nature of these issues were such that they were not set out in the body of the Court’s transcript and instead were attached as a confidential Annex to the Judgment.

The High Court considered whether, in all the circumstances, it was in the public interest that the duty of confidence should be breached. It was also noted that other Convention rights could be relevant in the circumstances such as the right to privacy of the third parties who could be named by Mr Mellish.

The Court ultimately decided to grant a temporary injunction despite this conflicting with the right to freedom of expression to which Mr Mellish was entitled. Several factors formed the basis of this decision.

Firstly, the Court felt that the matter would have good prospects of success should it proceed to trial. Secondly, there was a clear risk that highly sensitive information could be published. The rights of the third parties involved were also highly relevant to the Court’s decision. It was considered that reputational harm was not the primary motivating factor for Linklaters having applied for the injunction. If it had been, it was far less likely that the injunction would have been granted.

Lisa Moore comments: “Although applications for injunctions are considered on a case by case basis, employers should seek some comfort from this decision. The High Court is clearly willing to override Convention rights to prevent the disclosure of confidential information where necessary. This decision also serves as a reminder of the importance for employers to adopt appropriately drafted confidentiality provisions to protect their position as far as possible. An employer is in a much stronger position whenever attempting to enforce an express term of a contract rather than just relying on an implied term.”

For more information about how we can help assist your business in respect of the above issues, from drafting appropriate confidentiality provisions and restrictive covenants, to obtaining an injunction, please follow the link to our Business Protection Package.

Otherwise, to discuss anything arising from this update, please contact Lisa Moore or any member of the Employment Team on 0121 233 4333. 

Lisa Moore
Lisa Moore

Associate Solicitor, Employment