Matt Hancock’s WhatsApp messages: Can Isabel Oakeshott’s breach of confidence be justified?

As has been widely reported, journalist Isabel Oakeshott has passed a number of former health secretary Matt Hancock's WhatsApp messages to The Daily Telegraph, which has published them as part of its Lockdown files investigation.  The messages, apparently totaling over 100,000, were originally provided to Ms Oakeshott by Mr Hancock for the purposes of helping him write his book The Pandemic Diaries.  The messages comprise communications between Mr Hancock and other ministers and officials during the Covid-19 pandemic.

No doubt mindful of the sensitivity of the messages, Mr Hancock required Ms Oakeshott to sign a non-disclosure agreement.  Ms Oakeshott accepts that she has breached this agreement, but defends her actions as being in the "overwhelming national interest".  Speaking to BBC Radio 4, Ms Oakeshott said, "This is about the millions of people, every one of us in this country, that were adversely affected by the catastrophic decision to lockdown the country repeatedly on the flimsiest of evidence, often for the political reasons...I wanted to get to the truth of it".

In response Mr Hancock said he was hugely disappointed by a “massive betrayal and breach of trust” by Ms Oakeshott, claiming that there this “absolutely no public interest case for this huge breach”.

On the face of it, Mr Hancock will have claim against Ms Oakeshott for breach of contract and breach of confidence.  Depending on the nature of certain messages, an additional claim for the misuse of private information may also arise.  If such claims succeeded, Mr Hancock could be entitled to damages from Ms Oakeshott.  Moreover, depending on whether the horse has already bolted (as it seems is probably the case), injunctive relief could be sought against Ms Oakeshott to prohibit the disclosure of further information.  Additionally, and perhaps more significantly, Mr Hancock could also consider the 'nuclear option' of seeking an interim injunction against The Daily Telegraph to prevent the publication of further confidential information.  There is Court of Appeal precedent for such a course of action, namely ABC & Ors v Telegraph Media Group Ltd [2018] EWCA Civ 2329, where the Court imposed an interim injunction prohibiting the newspaper from publishing confidential information that had been supplied to them in breach of a non-disclosure order.

So to what extent can Ms Oakeshott's justification for the disclosure avail her of a legal defence?  Plainly, decisions taken by, or involving, the former health secretary during the pandemic are a topic of considerable public interest.  However, this does not give a journalist carte blanche to indiscriminately disclose a significant quantity of prima facie private and confidential information.  A more granular analysis is required.  What is clear is that the existence of an express contractual provision is likely to mean that a duty of confidentiality carries more weight (as per the Court of Appeal in Campbell v Frisbee [2002] EWCA Civ 1374, a view endorsed in ABC).

Lord Toulson's Confidentiality (3^rd ed.) (2012), at paragraph 6-075 summaries the factors the court has to determine when considering a public interest defence:-

"(1) Respect for confidentiality is itself a matter of public interest.

(2) To justify disclosure of other confidential information on the grounds of public interest, it is not enough that the information is a matter of public interest. Its importance must be such that the duty otherwise owed to respect its confidentiality should be overridden.

(3) In broad summary either the disclosure must relate to serious misconduct (actual or contemplated) or it must otherwise be important for safeguarding the public welfare in matters of health and safety, or of comparable public importance, that the information should be known by those to whom it is disclosed or proposed to be disclosed.

(4)(i) Even if the information meets the test, it does not necessarily follow that it would be proper for the defendant to disclose it.

(4)(ii) The court must consider the relationship between the parties and the risks of harm which may be caused (or avoided) by permitting or prohibiting disclosure, both in the particular case and more generally. […]

(5) Ultimately the court has to decide what is conscionable or unconscionable, which will depend on its view of what would be acceptable to the community as a fair and proper standard of behaviour. This requires the court to make an evaluative judgment, but it does not have an unfettered discretion."

The case of Saab & Anor v Angate Consulting Ltd & Ors [2019] EWHC 1558 (Comm) provides a useful example of the limitations of a public interest defence where there is a contractual obligation to keep information confidential.  Mrs Justice Cockerill found that the defendant private investigators had breached their confidentiality obligations by making allegations of criminality against their own formers clients to regulators.  She rejected the public interest argument, inter alia, noting that that "...what had been supplied was virtually a "document dump" of the materials which the Defendants had acquired during the course of their retainer, together with the products of their work".  Crucially, the Judge noted that:-

"...This approach to the case, driven by the circumstances of the disclosure, was the more to be regretted because it seemed to me that had the exercise of disclosure been approached purely as one of public interest disclosure, with careful advice and focussed disclosure being made, there was a real possibility that some part of the disclosure in fact made would have been capable of being justified on this basis. However because of the primary approach taken ("widespread and serious criminality" as a justification for disclosure at large) the case as presented lacked focus on the individual heads where disclosure might have been considered, the materials disclosed relevant to each such head and the specific public interest in those particular disclosures. As a result it has not been possible for me to perform as complete a balancing exercise on the individual points as would otherwise have been the case."  

At first blush, the circumstances of Ms Oakeshott's mass disclosure risks falling within the unfocussed category.

Comment

NDAs have a bad name as they have been said to have been used to silence victims of serious criminality.  Much of the commentary from the press on the subject has been misleading.  Whilst undoubtedly some individuals may have unwittingly entered into NDAs or felt pressured into agreeing them, NDAs are, in theory, freely negotiated between parties.  As matter of law, they cannot be imposed on a party and nor do they prevent the reporting of criminality to the police (moreover in certain circumstances they can lawfully be breached under 'whistleblower' provisions).  In many innocent non-contentious scenarios they are a commercial necessity, or in litigation can assist in the resolution of a dispute.  Nevertheless, their credibility is at an all-time low.  This has inevitably led to some people believing they can be disregarded or that there is little risk in breaching them.  This poses a problem for the courts, who, as a matter of public policy, should be slow to disapply contractual terms freely agreed by parties.  Parties need to have certainty over their legal obligations and contracts are designed to achieve this.

Finally, Ms Oaksehott's actions raise serious questions about journalistic practices.  Whatever one thinks of the parties in this case or the wider topic of the pandemic, sources need to trust assurances of confidentiality given by journalists.  If sources don't believe they will be protected then people will be less willing to talk to the press in the future.  Quality journalism will suffer as a result of this.

Whether Ms Oakeshott's mass disclosure of WhatsApp messages can legally be justified will depend on a qualitative analysis of the information and surrounding facts.  That said, it is unlikely that any competent media lawyer would have advised her that her disclosure was risk-free.

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