The HKU injunction reimagined: A case on breach of confidence and free press

 

Press freedom is as precious as oxygen in the air, but the deterioration of it shows no tangible signs. In the recent interlocutory injunction application the University of Hong Kong v Commercial Broadcasting Co Ltd[1], HKU seeks to enforce confidentiality through an injunction against the press and any person leaking out unauthorized tape recording of the council meeting on appointment of the position of Pro Vice Chancellor. The Counsel in the hearing submitted that, “ it is not our side’s intention to enter a fight with the press”, but the fact remains that serious questions against press freedom has arisen, namely, whether the public interests in this application are properly recognized, and whether the Plaintiff should prove prima facie that the public interests in preserving press freedom do not overweigh public interest breach of confidence claim. It is submitted that, the HK position is manifestly inadequate in protecting free press; and that a human rights sensitive approach, as such in the UK can help reimagine and shape a better protection scheme.

 

In this essay, I would first briefly list out the relevant facts, then discuss the issues of breach of confidence claims in the Hong Kong legal positions, in particular the public interest balancing exercise. Comparing the UK statutory protection regime, which grants a powerful protection to rights to information and freedom of expression, serious questions of public importance can be contrasted with the Hong Kong legal regime.

 

The HKU Appointment Saga

 

The saga stemmed from a meeting of the HKU Council on 29 September 2015 with regards to the refusal to appoint Professor Johannes Chan as the Pro Vice Chancellor, by a vote of 12 to 8, upon recommendation of the Search Committee. The matter is alleged to be tainted with political influences from both pro-establishment and pro-democracy camps, in particular the Chief Executive CY Leung lobbying against the appointment. The appointment issue of a university is throughout of wide media coverage.

 

After that Council meeting, the Chairman told the media that the decision was based on the “best and long term interest of the University”. The tension further boiled up when student council member Mr Billy Fung whistleblowed seemingly conversations[2] in that particular meeting that night. In late October, the Commercial Radio further released two taped recordings of that meeting. Despite the gag order, further audio recordings were leaked at a Taiwanese forum and then republished in Apple Daily in mid-November.

 

The University has applied to the Court before Seagroatt DJHC an interlocutory injunction grounded on breach of confidence, against Commercial Radio and “persons unknown” to disclose any information on the alleged meeting [3]. After the ex-parte hearing, Apple Daily, the HK Journalists Association (HKJA thereafter), Legislative Councilor (Education Sector) Hon. Mr Yip Kin Yuen, the Chief Editor of Undergrad HKUSU and a HKU student applied to Court to join the proceedings as defendants or interveners (“defending parties”). Lam J upon hearing both parties, continued the injunction with amendments. In his written judgment (“HKU judgment”), he decided that, firstly among those five parties no parties satisfies the interests requirement under Order 15 rule 6(2) or at common law; and secondly the breach of confidence claim is prima facie established, and thirdly the public interest thereof is dealt with inherently in the balancing exercise and is to be determined in a full trial.

 

The Hong Kong position adopted in the present case

 

            The private law on breach of confidence in well settled and is applied in the present case [4]. Confidentiality originates from a breach of contract and trust [5] to an equitable obligation to protect secret information[6], but is independent of any right at law[7]. According to the leading case Coco v AN Clark (Engineers) Ltd[8], the information must have the necessary degree of confidence attached to them. Without going into the development of the law, the Court recognizes that a duty of confidentiality could arise when the Council meeting, not hold in public, contains information that a reasonable person would normally regard as confidential[9].

 

Though not disputed otherwise by the defending parties, special caution should be given at the junction in deciding whether duty of confidentiality should be imposed by a reasonable recipient test, that is “by reference to the knowledge or notice of an objective reasonable recipient, in the assessment of which the subjective views of the parties could be taken into account”[10]. The objective recipient test is consistently applied in trade secrets or commercial cases[11]. But whether the set of facts largely administrative, and in particular where the press and matter of public interest are involved, should warrant a different threshold, is yet to be reviewed[12].

 

Balancing exercise of the public interest defense

 

            As the Court is satisfied that there is a prima facie case, it then proceeds to say that American Cyanamid Co v Ethicon Ltd[13] requires the Court not to do the balancing exercise of public interest defense in the interim stage, and even if dealing briefly, the exercise tilts towards the Plaintiff and where lower risks of injustice is present[14]. His Lordship however adds that the public interest defense remains unclear[15]. It is necessary to recount to the authority in Lord Goff‘s speech in AG v Guardian Newspapers (No 2) [1990] 1 AC 109 (“the Spycatcher case”), the three limiting principles at 282 – 292,

 

"… The third limiting principle is of far greater importance. It is that, although the basis of the law's protection of confidence is that that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest  which favours disclosure...It is this limiting principle which may require a court to carry out a balancing operation, weighing the  public interest  in maintaining confidence against a countervailing  public interest  favouring disclosure."

 

The exercise starts with both sides equal, balancing test among various public interests in protecting and limiting law of confidence in equity. Presumably the Court undergoes only the traditional common law test and would only balance confidentiality of meetings and harm to its functioning with arguments for iniquity and free press. The public interests exercise undeniably would tilt more favourably to the Plaintiff in law and on facts.

 

On one side of the balance, there is private interest to protect confidentiality, which arguably is more “public” than it appears as it involves information of meetings by a public body[16]. HKU pleads that, with reference to its internal code of conduct, that it is of public interest that the discussions of meetings are kept confidential as to ensure members can, as in the past, speak freely and honestly and on various aspects of the issues, without any pressure, so that the policies eventually formulated will be more comprehensive and integrity of the system will be maintained[17]. However, this is unsupported by any authorities[18].

 

On the other side of the balance is public interests favoring disclosure. One aspect stems from the law of equity that the law of confidence shall not protect misconduct or serious misdeed of such a nature that it ought to be disclosed to others as laid down in the old rule in Gartside v Outram[19]. The standard of proof is to prove a reasonable and serious prima facie[20]. In Lion Laboratories Ltd. v Evans and Others[21], Stephenson LJ suggested the defendants do not have to prove allegations technically true in that allegation, though the report itself may trigger further investigations; the defense is sufficient if it is associated in the public mind with the allegations.

 

On facts, the matter concerns the appointment of HKU, unprecedentedly controversial, and the public demands to know the underlying reasons of the refusal of appointment[22]. As Mr Lee SC argues, what the Chairman told the press that night was only a conclusion, but not the reasons. Leaked recordings also support that there are more information to the reasons of rejecting the candidature. However, his lordship has plainly rejected the argument, narrowly on the point that there is no “anti-social conduct”[23] and stressed that the public interest test is not of interest to public[24], setting the standard even higher for the defending parties to argue otherwise.

 

Free press as a constitutional right

 

Another aspect is free speech. First of all, Lam J put the free press element, plainly as the journalists’ right to receive information from “person unknown” of the leaked recordings, which is clearly subject to debate. It is no surprise that the Court rely on mostly on Spycatcher case and argue that inherent tests of balancing notwithstanding the fact that that case relates to national security, an vital interest of the State vastly different from keeping meetings secret.

 

In Hong Kong, it is clear that Basic Law article 27 expressly protects press freedom; and the ICCPR article 19, entrenched by Basic Law article 39, and the Bills of Rights article 16 protects freedom of expression including press freedom[25]. The media enjoys such constitutional right as it acts as “the eyes and ears of the general public” and takes the role of “public watchdog”[26]. Its role essentially is to impart ideas and communicate information, so as to effectively allow the majority of the public to participate in public life compared to the minority who actively make decisions[27]. In a series of CFA cases on defamation that discusses public interests no less, Chan PJ held that “arguably it might even be said that the media, vigilant in the interests of the investing public, had a duty to comment and draw attention to such happening [of insiders’ dealings]”[28].

 

But freedom is not without restrictions. Contrary to a proportionality test that starts with a presumption over preservation of freedom, the balancing exercise only requires the public interest to be overriding to other rights prescribed by law, such as rights of others. Lord Hoffman in R v Central Independent Television Plc[29], highlighted the importance of freedom as ”the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible” and the right for journalists to judge which form of information best tells the story[30]. It is thus noteworthy that what the Council members condemned or even what the judge thought of the whistleblowing should not be placed heavier weight than it should be.

 

Journalists have the freedom to judge how to disseminate information; and they have the right to both receive and impart all the information they have[31]. But it remains for the defending parties to argue for disclosure of this particular material for journalism.

 

Locus standi of the parties

 

In essence, the same stringent test of narrowing the role of free press has been employed throughout the application. It worth to consider what his Lordship said, in deciding the standing of the parties [32], journalists are no different from “the rest of the world” if they do not have the alleged materials. It is plainly wrong to consider that as prerequisite. This strict test would make the order ineffective, as latter events showed that the materials can be posted in Taiwan forum then republished by Apple Daily in Hong Kong and Apply Daily is not bound anyways with the public domain exception and refusal to be joined as Defendants.

 

In law, it is sufficient if the parties show some direct interests in the action, no matter doubtful or not[33] and more than commercial interest in the outcome of the trial[34]. Kerr LJ observed in the context of rule 6(2)(b)(ii) of the corresponding English rules[35], “In my view the rule requires some interest in the would be intervener which is in some way directly related to the subject matter of the action. A mere commercial interest in its outcome, divorced from the subject matter of the action, is not enough (his emphasis).” The only inference to be drawn from the Court’s decision can only be that the parties do not have sufficient direct interest, thus rejected a claim of public interest as journalists in the subject matter of the action notwithstanding the wide discretion in allowing interveners.

 

In short, repeated points of law have shown an inadequate protection towards free press in this breach of confidence claim, and the rights of the press was in effect deprived of when they have to prove more likely than not that they have direct interests and public interests in reporting any leaked materials not already in the public domain.

 

Comparison with the UK statutory regime

 

            The reason why the UK regime should be compared with the HK position is due to its human rights emphasis codified since the Human Rights Act 1998 (“HRA”) and its similar common law developments of the law and persuasive references to human rights instruments. The positions of access to information as a human right, the burden of proof and the proportionality tests are three main areas worth discussion.

 

Statutory and common law protection towards subjects of disclosure

 

The UK statutory regime is threefold in terms of protecting access to information, whistleblowing and public interests. The Freedom of Information Act 2000 (“the FOIA”) refers to a right to be informed and have the requested information communicated to him[36] when a person writes to request certain information from public bodies. The Public Interest Disclosure Act 1998 encourages whistleblowing for public interest and substantially extended protection of iniquity rule. These two instruments expressly favour disclosure when balancing other rights and interests.

 

The third instrument is the HRA as a whole prescribes a human right sensitive approach and presumption over constitutional rights. In particular, section 12(3) reads, no injunctive relief is to be granted unless the applicant can satisfy the court that the publication is not to be allowed, noting the damaging effects of injunction to publications[37]. The burden shifts to the applicant to justify intervention. Analogously to privacy cases which the provision was applied, the Act would mean a change from balancing the private rights and free press to ensuring proportionality in justifying an intervention of the right.

 

The UK and Strasbourg Courts have also vigorously applied the proportionality in order to secure protection to human rights in a breach of confidence claim[38]. Article 10(1) of ECHR writes that the freedom of expression includes both freedom to receive and impart information, and the public distinctively holds the right to receive information concerning public interests[39]. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of that freedom is reasonable and proportionate. As early as in Observer and Guardian v. the United Kingdom[40], the Court applied the proportionality test to the Spycatcher case requiring the Plaintiff to justify the intervention of article 10 on free speech as with a legitimate aim, necessary and proportionate. Human rights covenants also sets a liberal and clearer test for Plaintiff to justify the intervention of freedom of expression “for preventing the disclosure of information received in confidence”, as an express limitation in ECHR article 10(2), over a pressing public need to know[41].

 

Viagogo demonstrates the test in a similar breach of confidence claim

 

The approach can be best demonstrated in Viagogo Ltd v Myles & Ors[42]. Viagogo, a ticket selling company in connection with live promoters, claimed damage to its business interests against investigative reporting by Channel Four Television. Submitted by Mr Shum as the defending parties of the HKU case, the Viagogo case demonstrates best an approach of a shifted burden and the element of public interests therein.

 

The first defendant, a former employee, gained access to detailed, specific yet confidential information of the company and did covert filming. Stressing that though improperly if not unlawful garnering of evidence is certainly a matter of concern albeit is inevitable by the nature of activities of the defendants, the Court looking at the internal guidelines and evidence to importance to honouring them, concluded that “the way in which it is conducting its website in this particular respect in relation to primary tickets … is, to put it no higher, shady.” Almost directly confrontational to the private interest of confidentiality, this approach to balancing public interest gives the highest respect to public need for openness and investigative acts to functioning of the company.

 

The Court, in addition, demanded the applicant to bear the burden to prove a probable case. By HRA section 12(3), that the applicant has to first prove sufficiently favorable, ie more likely than not[43], that the publication of the materials ought not to be published. The Court continued, at paragraphs 36 - 54, that apart from an interest of confidentiality to be protected, the applicant must then show that this confidentiality must override any other reasons or public interest in a balancing test present in the case. The shift of burden is comprehensive and rightly so. Viagogo failed to prove absence or insignificance of iniquity is not entitled to protection. On facts it concealed true source of tickets and benefited from mark-up of prices and collusion with sellers. It also bears risk of cost consequences.[44]

 

The right to information recognized?

 

            Lastly, as a matter of law and governance, is the right to access to information going to assist journalists in performing its duty to receive and impart information? Even though such a “right” has not been consistently applied, the Court’s discussion of such a policy goal for openness and accountability benefits the public at large tremendously. Lord Mance JSC (with Lord Neuberger and Lord Clarke concurring) in Kennedy v Charity Commission[45] discussed the ground principles of the UK jurisprudence, as beautifully introduced the importance of information as follows,

 

“Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. [P]ersons conducting inquiries and investigations depend on it; likewise the press, … to report on issues of public interest. “

 

This particular case is insightful to how the UK Courts dealt with a rejected inquiry of a journalist into the operations of a controversial Iraq charity organization. It is submitted that both a right to information and common law constitutional principle of open justice is however not available to journalists despite a recognition for transparency.

 

Advocates arguing for a positive right to access to information have found support, though not straightforward, in case laws applying ECHR Article 10[46]. In Kennedy v Charity Commission, the majority of the UK Supreme Court ruled that there is no right to access to information conferred from the article[47]. Despite the leading case of 1987, Leander v. Sweden[48], denies the right to access information kept in the Security Department, there are recent cases that establish that the Court has consistently recognized the right and law has developed in relation to press freedom (emphasis added)”[49]. It is respectfully submitted that, even though the case law do not suggest a general right and consistent application[50], the general importance of information in contributing public debate is widely recognized.

 

            In addition, Lord Toulson JSC in Kennedy established that the principle for open justice, as with natural justice, became “part of constitutional landscape”, “do not depend on being contained in a statutory code” and can assist the Applicant to establish his claim. His Lordship added that the application (and not the existence) of the open justice rule can be extended to statutory inquiry in accordance to FOIA section 78[51]. This extension is rightly criticized by Lord Carnwath JSC[52]. Their Lordships however recognized the common law requirement for transparency alongside with the statutory protection– allowing public access to information and challenges to inquiry decisions when balancing with other policy issues.

 

            All in all, the UK Courts has to a large extent employ protective safeguards to defending media through a shift in burden and proportionality, and on top of that, pledge itself to complying with international and ECHR requirements as well as its own statutory regulations. However, a general claim of right to information or transparency do not assist the parties further.

 

How far is Hong Kong from granting the same level of protection?

 

            In the apparent lack of statutory protection for public interest disclosure and whistleblowing in Hong Kong, the Courts can still rely on international human rights instruments and common law to balance the public interests thereof.

 

Common law and human rights instrument in favour of human rights

 

            Undeniably, suggestions for such a right to information have not been absent. In the recent General Comment 34[53], the UN Human Rights Committee has specified a right that “the media may receive information on the basis of which it can carry out its function… without censorship or restraint and to inform public opinion” and there is a right conferred under ICCPR Article 19 that “states should make every effort to ensure easy, prompt, effective and practical access to such information [of public interest].”  Besides, in a recent HKCFI case[54], the Court also noted the UNHRC decision that affirmed a general duty to disclose information in the administration of justice and accountability for judicial process, following a similar pathway as the Kennedy discussion.

 

However, it is unlikely that Hong Kong courts would adopt the UKSC’s reasoning in Kennedy on either common law requirements for transparency or establishing a right to access information conferred from ECHR article 10, as it would be too unprecedented in Hong Kong without statutory instrument and would risk being criticized of judicially constructing a new right. This argument is relied on the sad fact that the freedom of information law in Hong Kong remains quite obsolete.  Both Personal Data (Privacy) Ordinance (Cap 486) Schedule 1 Data Protection Principles and the administration regulation “Code on Access to Information” presumably only provide access to personal information and information of government agencies[55], and has no legal effects to anything close to a “right”.

 

The human rights sensitive approach

 

Furthermore, the application of private law and its strict tests of confidentiality have been insensitive to public law. In the conventional balancing exercise triggered only when a public interest defense is raised, insufficient weight is given to the constitutional position of press freedom[56]. It can be reconciled in terms of confidentiality threshold, burden of proof and the proportionality test in replacement of the public interest balancing exercise.

 

First and foremost, it is now trite that there is little difference to the nature of the relationship where the protected information is obtained through a relationship of confider-confidant or released by the media when it is expected to be confidential. The standard of the duty imposed, which appears too strict to accommodate the special nature of public interest, should be reviewed in law. One suggestion appears to be what Baroness Hale discusses in Douglas & Ors v Hello, whether the person publishing the information knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential[57]. Citing the Australian High Court case Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd[58], her Ladyship clearly adopts the standard of the person seeking disclosure, rather than the recipient. This position however remains unclear[59].

 

            Arguably, more safeguards to free press can be employed if the Court can resort to common law for a more balancing and human rights sensitive approach rightly in the absence of relevant statutory provisions[60]. The burden of the claim should be shifted to the Plaintiff to justify intervention as suggested in Viagogo. It is the Plaintiff’s burden to bring to prove that it is more likely than not the private interests of confidentiality outweighs the constitutional right of free speech and free press, and this is as a matter of relevant principles of confidentiality rather than a separate human rights test[61]. Moreover, it is also desirable that both parties should argue with case law. Shaping a more detailed proportionality test on confidentiality, compared to allowing a general defense of free speech, would be beneficial for clarity and certainty and would be helpful in arguing without too much personal opinion.

 

In conclusion, the HKU injunction case demonstrates the unduly harsh burden on the defending parties to prove public interests defense, compared to the plaintiff’s. In these particular circumstances, it is even more difficult to prove public interests, despite obvious nature of the subject matter, without established laws on transparency. How does public interest in receiving and imparting information weigh? To whose standard does the Court consider on the question whether the journalist has professionally discharged its duty by any forms or lengths the law permits? These questions are delayed as a matter for the full hearing, if not misinterpreted in the interlocutory judgment. But justice delayed is justice denied. Irreversible harm has been done in light of the inadequate protection to free press, and the harm per se is not to be a reason for continuing the gag order.

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Footnotes:

[1] HCMP 2801/2015, 30 Novmeber 2015. The interlocutory hearing is on 6 and 24 November 2015, before Hon G Lam J. On 6 November, his lordship, despite the contesting arguments on the authority of the plaintiff and the duty for full and frank disclosure in the ex-partes application, agreed to adjourn the trial and to narrow the scope of the order with an effective public domain exception. On 24 November, the parties addressed the Court on the issues arising of Plaintiff’s application, namely, whether the other parties can join as interveners and where there is a breach of confidence established prima facie of the submissions. I will refer to the judgment thereafter as “the HKU judgment”.

[2] Whether Mr Fung’s message has been the gist, as Mr Lee SC argues, or an “incomplete” and “imprecise” record of the discussion, as Lam J suggests, is a fact to be determined.

[3] Upon Court order, the Commercial Radio took down the tapes online, and further came into terms with HKU on 5 November by consent summons and undertaking not to leak further audio recordings of the meeting. He is discharged from the action.

[4] HKU judgment at paragraphs 38-53.

[5] Prince Albert v Strange (1849) 1 Mac. & G. 25.

[6] Per Megarry J in Coco v AN Clark (Engineers) Ltd [1969] RPC 41.

[7] Duchess of Argyll v Duke of Argyll [1967] Ch 302 at page 322.

[8]  [1968] FSR 415, followed in Hong Kong in PCCW-HKT Telephone Ltd v Aitken FACV 27/2008, 13 February 2009.

[9] HKU judgment, at paragraph 39. See also Tchenguiz & Ors v Imerman [2010] EWCA Civ 908, at paragraphs 58-71, in particular paragraph 66. The CFI adopts fully in Sim Kon Fah v JBPB & Co and others HCA 49/2011, 24 June 2011 and SK Hynix Inc v Vannex International Ltd HCA 1473/2014, 10 February 2015.

[10] Gurry on Breach of Confidence 2nd Edition paragraph 7.39.

[11] SNE Engineering Co Ltd v Hsin Chong Construction Co Ltd and others [2015] 4 HKLRD 517, para 131.

[12] This position is supported in Toulson & Phipps, Confidentiality (2012) paragraph 6-058. The author discusses London Regional Transport v Mayor of London [2001] EWCA Civ 1491, where Robert Walker LJ and Sedley LJ that the existence of such a duty by the reasonable recipient conscience is an important limitation to the ECHR Article 10 right to freedom of expression.

[13] [1975] AC 396.

[14] The defending parties argued that the test on injunctive relief in a case involving human rights should not be applied here, and should follow Cream Holdings Ltd. v. Banerjee [2004] UKHL 44 instead.

[15] HKU judgment, at paragraphs at 52- 53. Lam J upon reviewing the authorities, also sees the uncertainty as a matter of Hong Kong position, in the definition and requirement of the public interest defense.

[16] It should be reminded of the public nature of a university. The University is a publicly funded body and regulated under the University of Hong Kong Ordinance (Cap 1053). The Council is, as conferred by statues, the decision-making body for the University.

[17] Analogous to the Executive Council of Hong Kong, the argument is eventually similar to that of the Executive Council in the HKTV Free License Saga, as reflected in the written reply by the Chief Secretary for Administration in Legislative Council Question 19, accessed at http://www.info.gov.hk/gia/general/201311/27/P201311270647.htm.

[18] Toulson & Phipps, Confidentiality (2012), paragraphs 19-024 to 19-034, reviews relevant arguments in terms of public interest immunity and seemingly suggests that there is an argument against disclosure in terms of facilitating understanding of “inner working of the government to avoid ill-informed or captious criticism”.

[19] Gartside v Outram (1857) 26 LJ (Ch) 113 per Sir William Page Wood VC. See also Maccaba v Lichtenstein [2004] EWHC Civ 1579. The extension of this rule, as suggested by Clarke (1990: 75), as “whether it is in the public interest that certain information be made public”, is seemingly to broad and vague to be the test. I shall discuss no further.

[20] Lion Laboratories Ltd. v Evans and Others [1985] Q.B. 526. For the development of the rule, see also Harrods Ltd v Times Newspapers Ltd [2006] EWCA Civ 294 at paragraph 38.

[21] ibid.

[22] Another point of observation in the trial, is that the arguments for disclosure often require submissions on facts, overtly political, and is not so well received by the Court. With all respect, Mr Lee SC’s speech in particular was dosed with his passion for HKU and seemingly relied on Wednesbury unreasonableness in supporting “public interest”.

[23] HKU judgment at paragraph 85.

[24] See also R v Central Independent Television Plc [1994] Fam. 192.

[25] This right is generally recognized but not discussed in full its substance. See for example, Secretary for Justice v the Oriental Press Group Ltd & Others [1998] 2 HKLRD 123.

[26] AG v Guardian Newspaper (No 2) [1990] 1 AC 109 at 183F.

[27] See for example, the House of Lords decision in Reynolds v Times Newspapers Ltd [2001] 2 AC 127. The case is well received by Hong Kong Courts in defamation cases.

[28] See for example, Next Magazine Publishing Ltd and others v Ma Ching Fat [2003] 1 HKLRD 751, at paragraph 36.

[29] [1994] Fam. 192.

[30] Re Guardian News & Media [2010] UKSC 1 at [63] per Lord Roger.

[31] An extra hurdle, which is not yet addressed in the judgment, is the scope of the disclosure permitted under this public interest argument, and whether it is necessary to publish the whole of the information to satisfy that public element. See Her Majesty's Attorney General in and for the United Kingdom v South China Morning Post Ltd and Others [1988] 1 HKLR 143. In Barclays Bank Plc v Guardian News and Media Ltd [2009] EWHC 591 at paragraphs 29 to30, Blake J weighs public interests in understanding great financial institutions like the bank, being a part of the bedrock of our economy and society. “…If the debate can flourish without the publication of the full documents themselves, that is a highly material factor… the more that is sought to be published… The self-direction of a responsible journalist is to consider whether the justification of full verbatim quotation as part of the exercise of freedom of expression is made out with particularity to the form of publication that is intended”.

[32] HKU judgment, at paragraphs 25 to 32.

[33] See Man Whi Chung v Man Ping Nam & Another [2003] 1 HKC 549 at paragraph 23. Deputy Judge Andrew Cheung (as the CJHC then was) held that “a person with a doubtful interest in the subject matter of the litigation was allowed to be joined, so that the doubt over his interest could be resolved at trial together with the relevant issues between the original parties.”

[34] See Civil Procedure in Hong Kong 2016, 15/6/1 and 15/6/8.

[35] In Sanders Lead Co Inc v Entores Metal Brokers Ltd (1984) 1 All ER, followed in Wong Chun Loong Tony v Ada Ltd [1991] 1 HKC 86 at p. 94 D-I.

[36] FOIA, section 1(a), as confirmed in Kennedy at paragraph 16.

[37] This point is discussed in the HKU judgment, at paragraph 64, 90. Section 12(4) is also of relevance where the public interests defense and the relevant privacy code (for example the Press Complaints Commission’s Code of Practice and Ofcom’s Broadcasting Code) codify some of the defenses available to journalists.

[38] The proportionality test in the UK, unlike the Hong Kong test in Leung Kwok Hung and others v HKSAR [2005] HKCFA 41, has adopted the ECHR prescription of a fair balance. See Soering v United Kingdom (1989) 11 EHRR 439 and R(Daly) v Secretary of State for the Home Department [2001] 2 AC 532. What is discussed in Douglas & Ors v Hello Ltd. & Ors [2005] EWCA Civ 595 as the “ultimate balancing test” is to be distinguished here because unlike privacy, confidentiality is not a convention right.

[39] Sunday Times v United Kingdom (1979) 2 EHRR 245at paragraph 65.

[40] 13585/88 [1991] ECHR 49 (26 November 1991).

[41] Applied in cases such as Naomi Campbell v MGN Ltd. [2002] EWCA Civ 1373.

[42] [2012] EWHC 433 (Ch).

[43] Cream Holdings Ltd. v. Banerjee [2004] UKHL 44.

[44] An extra point of consideration that the Court adopts, interestingly, is inquire what is the gist and purpose of the application. Considering also Tillery Valley Foods v. Channel 4 Television [2004] EWHC 1075, the Court asks itself whether the breach of confidence claim is in fact a retaliation of defamation, if so the application must fail.

 

[45] Kennedy v Charity Commission (Secretary of State for Justice and others intervening) [2015] A.C. 455 at [1].

[46] See R. Clayton, ‘The Curious Case of Kennedy v Charity Commission’ U.K. Const. L. Blog  (18th April 2014).

[47] See for example, paragraphs 61-101, 154.

[48] (1987) 9 EHRR 433.

[49] Österreichische v Austria, Application No. 39534/07, 28 November 2013, at paragraphs 33-36. Following the Grand Chamber decision in Gillberg v Sweden(2012) 34 BHRC 247, the Article 10 right to information is enforced onto a University professor to disclose research material methodology for other professors’ use and inquiry.

[50] For example, some cases supporting a general right arguably rely more on the intervention of “without interference by public authority” limb of the article. See for example, Ozgur Gundem v Turkey (2000) 31 EHRR 1082 and Centro Europa 7 Srl v Italy (Application No 38433/09) (unreported) 7 June 2012. In the latter case, the Grand Chambers discussed at paragraph 134, while balancing the importance of pluralism in a government-dominated TV licensing system, that there is a positive obligation to place appropriate framework to guarantee effective pluralism.

[51] See paragraph 128-129 and 133.

[52] At paragraphs 240 – 242.

[53] At paragraph 13 to 19, the Committee places special focus to the role of the press.

[54] Ng Shek Wai v Medical Council of Hong Kong [2015] 2 HKLRD 121 at paragraphs 84-85, citing Toktakunov v Kyrgyzstan (UNHRC, Communication No 1470/2006, 28 March 2011).

[55] The Code only permits inquiries on the basis that the information is in the possession of that department. Arguably, the University Grants Committee Secretariat may not have information of the HKU Council, and is of no use to the parties.

[56] Bulter-Sloss P in Venables & Anor v News Group News Papers Ltd & Ors [2001] EWHC QB 32 has expressly denounced the test at paragraphs 10–12 when balancing the interests thereof.

[57] Douglas & Others v Hello Ltd. & Others [2005] EWCA Civ 595 at paragraph 81.

[58] (2001) 185 ALR 1.

[59] See Associated Newspaper Ltd v Prince of Wales [2008] Ch 57 at 31 and 65-68. Also discussed in Toulson & Phipps, Confidentiality, paragraph 6-58.

[60] As respectfully contrasted with paragraph 58 of HKU judgment “there is no similar legislation in Hong Kong and it is not for the Court of First Instance to rewrite the law by a judicial decision to adopt an equivalent approach [following section 12(3) of HRA].

[61] Toulson & Phipps, Confidentiality, paragraph 6-59.