A law created to let the powerful suppress the truth
Sir Philip Green has thrown in the towel in his action against The Daily Telegraph. But he may still try to pursue any present or former employees who dare to speak publicly about his conduct, whether or not they have signed non-disclosure agreements (NDAS). This is the potential consequence of yesterday’s court ruling and it raises important questions of how the law of “breach of confidence”, which has never been passed by Parliament but created by judges, is being used to suppress the freedom to speak the truth about the wealthy and powerful.
Those who complained about Sir Philip’s conduct in grievance procedures had received compensation for their distress, but by the terms of their NDA this money they would be bound to repay immediately, with legal costs, if they speak about their grievances to any “journalist, press news agency, author, presenter, blogger or reporter”.
Sir Philip may still sue for any breach of the NDA and may also gag any other employee who breaches “confidentially or loyalty” by talking about what they have seen or witnessed in the course of work.
It might be thought, in a nation that values freedom of speech, that information described by one judge as “likely to make a significant contribution to the current debate of general public interest on misconduct in the workplace” should be publishable without let or hindrance. But not so: the public interest defined by judges is not always the same as that which would be understood by the public or by Parliament.
Lawyers regard protecting legal processes as the supreme public interest and hence the commercial importance of NDAS and of corporate loyalty will usually outweigh revelations about serious misconduct by the powerful. The Court of Appeal made this clear last year in its decision to suppress Sir Philip’s name, and the judgment yesterday warned that even if The Telegraph were able to prove its allegations of serious misconduct that might not ultimately have been sufficient to have prevailed over the court’s preference for “upholding agreements to settle litigation”.
Free speech is traditionally bound by the law of defamation under which individuals and companies, traduced by false allegations, can sue to nail lies and recover damages.
The advantage of taking action instead for breach of confidence is that it suppresses the truth when it is told by those in the position to know it, like employees and associates and virtually anyone in a personal relationship. In The Telegraph’s case, it was argued it extended to a “note taker” present at a settlement negotiation. And in actions under this law, originally made by judges to protect the upper classes from disloyal or gossipy servants, the defence of “public interest” is not very robust. This was demonstrated in another case last week, when the former managing director of the powerful solicitor’s firm Linklaters was injuncted from telling the press about examples of its “ongoing struggle with women in the workplace”. Such information might be thought of importance, particularly to a profession which proclaims its commitment to diversity, but the court had no hesitation in suppressing it. Law firms’ problems with women must not be divulged – by order of lawyers who are now judges.
Unless, of course, a Lord Hain invokes parliamentary privilege to override court orders, and future claimants must be warned of this possibility. But Parliamentary privilege can be no substitute for legislative action to put Breach of Confidence on a statutory basis with a specific right for citizens bound by it (whether by NDAS or simply by a relationship which the courts think is confidential) to speak out about serious misconduct without suffering legal reprisals.
Last year, a parliamentary committee called upon the Government to “clean up” NDAS after finding “they are used unfairly by some employers and lawyers to silence victims of sexual harassment” and the Prime Minister offered her support. There is no likelihood, however, in a legislature constipated by Brexit, of any early action.