Mr Justice Saini recently had to consider the balance between free speech and the principle of open justice with the protection of confidential information in a case concerning a whistleblower. He found in favour of the claimant over the former employee whistleblower.
Payone, a German payment services provider, brought the claim against its former employee, Jerry Kofi Logo. Mr Logo (who can always pursue a new career in trade mark law!) had unlawfully copied or removed confidential documents, including documents with personal information, during his employment and disclosed it to third parties (including regulators and press addresses). Payone sought injunctive relief.
Mr Logo also deployed some of the documents in Employment Tribunal proceedings against Payone. In those circumstances, he said, the material had entered the public domain and was no longer confidential. Therefore, if injuncted, he would be worse off than a member of the public.
Injunction granted against former employee
The judge was satisfied that an injunction was warranted for several reasons. Mr Logo had acted “wrongly and unlawfully” in his mass appropriation of the confidential information and the court should seek to prevent further disclosure. The fact that the claimant could have acted sooner to restrain him was a factor, but not determinative.
Moreover, the information in the underlying documents had not lost the quality of confidence even though parts of confidential information had been disclosed in the Employment Tribunal proceedings. There had been no application by a third party for disclosure of the documents.
As the confidential information included information of a personal and sensitive nature (including identification documents and financial information) there was “a real need” to prevent further disclosure.
The fact that there had already been intrusions into confidentiality or privacy did not prevent a claimant from seeking to restrain further intrusions. Finally, carve-outs in the injunction would allow Mr Logo to make appropriate use of the confidential information in the Employment Tribunal proceedings. The judge concluded:
“Overall, I have balanced the limited free speech rights in issue in this case against the Claimant's legitimate interests in protecting its own and its clients' confidentiality and the Claimant's property interests. The balance comes clearly down in favour of restraining Mr Logo.”
Payone was seeking costs in the region of £300,000. The judge ordered an interim payment on account of £100,000 which he said was “well within the sum the Claimant is likely to recover at the conclusion of a detailed assessment”.
What does this mean?
We have seen a number of cases recently concerning confidential information misappropriated by former employees. In this case, the judge was very critical of the defendant’s conduct and was in no doubt that a final injunction was warranted to prevent further disclosure. In other whistleblower-type cases, the arguments around free speech might be more nuanced.
In any event, this case illustrates well the complex challenges that arise when a former employee misappropriates confidential information. The judge listed 42 events in the employment, whistleblowing and injunction claims between March 2021 and the present, which have no doubt resulted in significant costs and disruption for both parties.
If you have questions or concerns about the protection of confidential information, please do contact us to discuss your options.
To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com