Colleague Adrian Waterman QC from our Media, Defamation & Freedom of Expression Team offers some thoughts on today's press reports of the Court of Appeal's judgment in the ABC case which has prevented The Telegraph newspaper from revealing details of allegations of sexual harassment and racial abuse made against a wealthy businessman:


Non-disclosure agreements ([NDAs] are becoming almost de rigeur in employment-type dispute settlements. There is nothing wrong in principle with such an agreement forming part of a larger settlement where someone is leaving a company. And, of course, there is an argument that the law ought to recognise and, where necessary, enforce an individual’s right to sell her/his silence. That is a different issue, however, from the law enforcing such agreements as against a third party and, in particular, the press.

A senior and wealthy businessman [ABC], or at least the companies owned by him, paid large sums of money to persons who had alleged he had abused them in one way or another during their employment. In addition, the alleged victims also agreed not to disclose their allegations. In ways which are unclear from the open judgment, The Telegraph learned of the allegations and of the NDAs. The businessman sought an injunction against publication. At first instance, before Haddon-Cave J (as he then was), he failed. He appealed. The Court of Appeal, Sir Terence Etherton MR presiding, overturned that decision and granted the injunction.  You can read the judgment by clicking here.

The test for whether to grant an injunction against the press is whether restraint of publication is “likely” to be established in a full hearing: section 12 of the Human Rights Act 1998. Despite the natural meaning of the word “likely”, namely “probable”, the courts have applied a lower threshold, dependent upon the circumstances, and stated that it is somewhere between the American Cynamid test of “a serious question to be tried” and “more likely than not”: Cream Holdings Ltd v Banerjee [2005] 1 AC 253.

In the case of ABC, the Court of Appeal found three related factors to be particularly important in deciding whether it was likely that ABC would be able to show that publication should not be allowed. First, that there was no evidence of bullying, undue pressure or harassment having procured the alleged victims’ agreement. Secondly, the alleged victims had the benefit of legal advice. Thirdly, they had therefore chosen to enter the contracts freely.

All of these factors are, no doubt, true in so far as they go. But the Court’s ruling fails to recognise the realities, and places too much importance on the issue of contractual relations. The reality is that the playing field is seldom a level one to start with. The #MeToo movement has shown that victims often do not have the courage to speak out alone. Many of those who have spoken out since Weinstein could not be described generally as lacking in courage. Nonetheless, not until they knew that others were doing so did they feel able to put their head above the parapet. No one could sensibly argue that it was anything other than hugely in the public interest that they have done so. And yet, with cases such as Richard v BBC [2018] EWHC 1837 and now ABC, the Court of Appeal has elevated in the first case a person’s legitimate expectation of privacy and in the second a person’s right to buy off such allegations over the right of the public legitimately to know. It is the public’s right legitimately to know that is at the heart of the public interest in a free, not gagged, press, as recognised by Article 10 of the European Convention on Human Rights and Fundamental Freedoms. One only has to imagine the following scenario: a businessman buys off the complaints of former employees who were seriously affected by his behaviour towards them by paying a large sum of money in return for an NDA. His behaviour is therefore kept secret. A newspaper learns of it and seeks to publish. The newspaper is restrained by an injunction. Five years down the line, 5, 10, 20 other employees who had joined the company later, ignorant of the history, are subjected to the same sort of behaviour.

No one would suggest that a reckless press should be free to publish scurrilous allegations without remedy or, as in the case of Richard, to sensationally and unfairly report the fact of an allegation. No one would suggest that there is no right to have certain confidential matters kept confidential. As in so many areas of modern life, a balance has to be struck. In ABC, the Court of Appeal accepted that there was force in the view of Haddon-Cave J at first instance that the information which The Telegraph intended to be published was reasonably credible. Nonetheless, the judges took the view that the fact that the alleged victims had freely entered into contracts trumped the public interest in revealing such reasonably credible allegations. It is suggested that reducing the judgment to this stark, but accurate, proposition is sufficient to show that there is a strong argument that they got the balance wrong.


Addendum

Since publication, two factors are featuring in reactions to this article: first, it has been emphasised that 2 out of 5 of the alleged victims supported an injunction; secondly, it is said that an expeditious trial has been ordered which shifts, or at least influences, the balance in favour of a temporary injunction.

As to the first, 1 out of 5 positively did not support the application for an injunction; 1 out of 5 was happy for there to be disclosure of the relevant details of the original allegation, provided her/his name was not published; and 2 out of 5 supported the application for an injunction.  It may be that the fifth did not express any view or was not contactable. The answer to this, it is suggested, is that once one or more alleged victims support publication, with or without their identity being revealed, there can be no weight to be attached to the views of others who do not support publication. Moreover, there is no suggestion that anyone was going to be named against their wishes.

As to the second observation, on the assumption that the trial will be as to the veracity of the allegations, this would effectively mean there could never be any publication until the veracity of the allegations was proved. Once the truth of the allegations is proved, iniquity would have been proved, depending upon the nature of the allegations, and/or the alleged perpetrator would have been proved not to have clean hands, in which case his equitable remedy would be lost. (Since the press is not itself a party to the contract, the alleged perpetrator’s remedy must be equitable only.)  In other words, a contractual NDA would for all purposes and in all circumstances be a complete bar to any publication until the third party press had proved it either did not apply (iniquity) or could found no meaningful remedy (dirty hands). This would be to place the bar so high as entirely to subjugate Article 10 of the ECHR and section 12 of the HRA to contractual agreements. As stated in the original comment, the contractual NDA trump would trump freedom of the press.