Sir Elton John

10 January 2002

Sir Elton John and others vs. Countess Joulebine and others (2001) QBD

Facts

A website was operated by the defendant in order to disseminate gossip. Users of the site were
encouraged to place gossip via a notice board provided by the defendant. One such item of ‘posted
gossip’ included a stolen confidential draft. This draft was in fact legal advice, and so highly
confidential. More prominence was given to this publication by providing a link on the home page
to this privileged document.

The Law

The law of confidence is such that an unauthorised publication of such material is considered a
breach of confidence and an action may be granted to prevent further publication. What may be
considered a confidential document will depend on the information, but generally may involve:

• An obligation of non-disclosure within a particular document
• A duty exists in certain papers involving professional relationships, eg: Client / Lawyer
• A duty of confidence will arise where a reasonable individual may determine that a document

contains confidential material

Three criteria are imposed on a party wishing to pursue remedy for disclosure of confidential
information:

1. The information must be confidential
2. There must be circumstances which give rise to an obligation of confidence
3. There must be an actual or anticipated unauthorised use or disclosure of the information

History

It will be useful to first explain current case law in this area. By way of analysis the case of
Godfrey v. Demon Internet Limited [1999] E.M.L.R. 542 is summarised below:

This case concerned the publication of defamatory material by an unknown third person on a website
controlled by the ISP. The issues that arose included whether:

A. The ISP was responsible for the material published; and
B. There was available to the ISP a defence of innocent dissemination.

The court concluded that the following criteria would need to be considered to establish liability
for the ISP:

1. The publication of material on a website amounts to publication for the purposes of the
Defamation Act 1996 s. 1 (1);
2. ISPs will be held prima facie liable for all publications on their websites;
3. ISPs will carry the burden to show that they have taken reasonable care to ensure that
defamatory statements have not been published; and
4. They have not knowingly contributed to the publication of defamatory material.

Summary

In this case the court found that a legal draft of this nature was clearly a highly confidential
document. The claimant applied for summary judgment based on the following:

• The defendant either knew or ought to be have known the information was confidential
• The information was being published in breach of confidence
• The information may have been initially received innocently, but the defendant later became

aware that it was divulged in breach of confidence

The court concluded that the defendant had no real prospect of success of defending the case.

The important significance of this case is that the current obligations that ISPs face with
material published on their websites has now increased:

1. The ISP will become liable once it becomes aware that information published on its site is
confidential;

2. The test for breach of confidence will be:

i) Whether the ISP ought to have known that such material is divulged in breach of confidence; or
ii) Whether the ISP perceived there was a risk of breach of confidence

This then leaves the ISP facing important questions:

1. Is the information sensitive?
2. Is there notice that the information is sensitive?
3. What is the risk that the information is sensitive?
4. Should the information be published?

Not only do website operators need to be aware of the risk of publishing potential defamatory
comments, but now they must also scrutinise current and future publications and assess whether
they pass the test of confidentiality. The burden is placed upon the ISP who should proceed with
caution and obtain clear advice if in doubt.

Jason Lysandrides of Lawdit