Case Update: Wee Shuo Woon v HT S.R. L. [2017] SGCA 23 – Court of Appeal holds confidential and privileged information does not lose confidentiality and privilege from being released on the Internet from hacking

Wee Shuo Woon v HT S.R. L. [2017] SGCA 23

Significance: The Court of Appeal holds that confidential and privileged information does not lose its confidential nature through being released on the Internet from hacking.

Privilege allows a party to withhold the disclosure of information that would otherwise be compulsory for it to disclose. Admissibility, on the other hand, relates to the question of whether a particular piece of evidence may be received by the court and is determined by the relevance of that piece of evidence to the matters in issue. Where the document in respect of which a party asserts privilege is already in the possession of his opponent, the issue is no longer one of withholding disclosure. The question thus becomes one of admissibility rather than privilege. Equity may, however, through the grant of injunctions, intervene to prevent the unauthorised use in court proceedings of information contained in privileged material. Such information would, in most instances, be of a confidential nature. The court’s equitable jurisdiction to restrain breaches of confidence is invoked in these instances.

The general principle is that equity imposes a duty of confidence whenever a person receives information he knows or ought to know to be fairly and reasonably regarded as confidential. When such confidential information is also privileged, an application may be made to restrain its use for the purposes of litigation.

Whether the fact that the Emails were on the Internet would defeat an application to restrain the use of the otherwise confidential and privileged information therein for the purpose of litigation.

Information that has entered the “public domain” is, as a general rule, no longer amenable to the protection of the law of confidence.

The “public domain” principle is not a freestanding rule to be mechanistically applied. it is expressed as a general and not an absolute rule. the “public domain” principle is merely an aspect of the scope of the duty of confidentiality. In other words, it is but one factor to be considered when determining whether a person’s conscience ought to require him to treat information as confidential. Thus, the question for the court in each case is whether the degree of accessibility of the information is such that, in all the circumstances, it would not be just to require the party against whom a duty of confidentiality is alleged to treat it as confidential.

There are two related reasons why the public accessibility of a piece of information affects whether it attracts an equitable obligation of confidence.

Firstly, the law of confidentiality is designed to protect confidences or secrets. The essence of such is that they are not publicly known. If information is known to the public at large, it would generally be both unreal and purposeless to attempt to regard it as confidential. Secondly, where the information has become so accessible and/or accessed that a reasonable person in the position of the parties would not regard it as confidential, it could not be unconscionable for the party who receives such information to treat it as not confidential.

It is very much a common sense inquiry whether the information has become so accessible and/or accessed that it would not be just in all the circumstances to require the party against whom confidence is asserted to treat it as confidential

Further, it is important to focus not only on the extent to which the information in question has become accessible but also on the extent to which it has in fact been accessed by the general public

Accordingly, the circumstances of each case must be examined. Consideration must be given to such factors as the likelihood of the information being accessed by the public, the degree to which the information has in fact been accessed and the extent to which the information may be appreciated and/or understood only with the specialised skills or expertise of the party seeking to make use of the information. Merely making confidential information technically available to the public at large does not necessarily destroy its confidential character. Public media, in particular the Internet, must not be the gateway through which all confidentiality is dissolved and destroyed.

On the facts of this case, while the relevant emails (“Emails“) had been uploaded onto WikiLeaks and had become potentially accessible by members of the public, the Emails constituted a minute fraction of the approximately 500GB of data that had been pilfered from the applicant’s computer systems through the hacking and uploaded onto the website.

Trawling through the data to identify the Emails would have been time-consuming even for a person who knew or suspected that the Emails were in the hacked material. It was highly probable that few, if any, knew of the existence of the Emails or their presence in the hacked material. Fewer still would have the interest and the inclination to undertake the task of scouring through the voluminous data for the Emails.

The Court was therefore of the view that the Emails and their contents were not public knowledge or in the public domain although they were theoretically accessible to anyone doing an intense search on WikiLeaks. The Emails thus retained their confidential status and could still claim the protection of the law of confidence.

News reports contained nothing that pointed specifically to or even hinted about the confidential and privileged emails and their contents pertaining to the party’s litigation strategy.

When privileged material contains confidential information, equity has typically intervened through the grant of injunctions to prevent its unauthorised use as evidence in court proceedings.

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