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07 March 2023

Hancock’s WhatsApp messages: Public Interest or Private Betrayal – Dominic Crossley for PR Week

Did the Daily Telegraph call it right or have they opened themselves up to a legal clash?

Dominic Crossley’s article was originally published in PR Week on 06 March 2023 and is linked below with kind permission.

Where do you stand? Do you sympathise with former Health Secretary and jungle celeb Matt Hancock or applaud ruthless journalist and author Isabel Oakeshott?  Perhaps you find it difficult to empathise with either camp.  But will Hancock ask a Judge to take a side, and test whether the publication of these WhatsApps are in the “public interest” as Oakeshott and the Telegraph assert, or an outrageous breach of confidence and misuse of his private information?

The Telegraph will have made a number of calculations before publication.  Perhaps the most important analysis is less about the law and more about the financial and reputational risks that Hancock would face by launching a claim now.  But what do we know about the facts that would be under the microscope if Hancock was minded to bring this to Court? We know the WhatsApps were provided by Hancock to Oakeshott to help her write his memoir. We also know that that she signed a Non-Disclosure Agreement (NDA) bringing contractual rights to confidentiality into play. The wording of that NDA would need to be examined closely.

One further nugget we learnt from Oakeshott in one of her post-publication interviews is that Hancock was not contacted before publication, denying him the opportunity to seek an interim injunction (the key remedy in privacy and breach of confidence actions) or issue a comment for the article.  Most journalists and editors insist on contacting the subjects of stories as a matter of good practice, because it is consistent with the Editor’s Code, and because the Court will take account of this step if the issue of public interest arises in the context of a defamation claim.  But it is not a strict legal obligation (the issue has been tested in the European Court of Human Rights) and the Telegraph decided the risks were worth the reward in launching this devastating ambush.

Public interest tests apply in Court proceedings concerning defamation, misuse of private information and breach of confidence. It is the breach of confidence aspect that may present the greatest hurdle.  By way of an example, in a recent case, a team of private investigators conducting an internal investigation for a bank were unable to convince the Court that there was a sufficient public interest in breaching their confidentiality obligations when they provided a cache of documents to a regulator that they thought demonstrated criminality. In breach of confidence actions the Court has to decide whether the public interest in the disclosure justifies the breach, given that the protection of confidentiality and freedom of contract are also in the public interest.  The Court will examine the detail of each item of information and whether there is a pressing need for its public disclosure.

What is the pressing need here? Clearly, the government’s response to the pandemic is of the highest public interest. Oakeshott participated in Hancock’s memoir and clearly felt that publication of these messages revealed more than had been disclosed in that or elsewhere. But the messages present an inevitably partial picture and the government had already commissioned an Inquiry which can examine these messages and so much more in terms of documents, minutes and oral evidence. For Hancock and others, these publications are enormously damaging and embarrassing. Oakeshott may be satisfied.  But would it be enough for a Judge?

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Dominic Crossley
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