Under the current hype of the FBI ordering Apple to ‘install backdoors’ on their iPhones, a bit of interesting news seems to have slid under the radar.
A court in Singapore ruled that e-mails from the Hacking Team breach, published by the hacker Phineas Fisher via a torrent download, and available freely on Wikileaks–were still confidential in nature.
The news hits close to home, after all, I’ve written a 2,000 word article on it back in July, and have been harping on the issue over the past weeks, even going on BFM radio for an interview.
So was I using confidential information in my tech evangelism?!
Well, probably not, but this does raise some interesting questions.
Here’s the facts of the case.
There was a dispute between Hacking Team, and one of their local Singaporean employees, Serge Woon. Shortly after the case was brought to court, Hacking Team was breached, and their e-mails published online–including e-mails to their lawyers regarding this specific case. Serge sought to use admit these e-mails as evidence in court, but the Judge, upon examining the facts of the case, decided that the e-mails, in this specific context was still considered confidential.
While not the verdict I would have wanted, the judgement is still pretty fascinating.
It made a clear distinction between ‘privileged’ information and confidential information.
If I have a ‘privileged’ conversation with you (as my lawyer), neither of us can be compelled to disclose the contents of our privileged conversation. But if someone came across the contents of our conversation, it could be admitted as evidence in a court of law simply because no one was ‘compelled’ to testify.
So in order for something to be inadmissible as evidence, it didn’t matter if it was privileged, what mattered was whether it was confidential.
The Judge laid down his framework (which he spent many pages building up) as follows:
In my view, the following propositions may be distilled from the cases, which I adopt and apply. First, the fact that a document is privileged is not a barrier to the admissibility of copies of the same into evidence. Second, the court may, in the exercise of its equitable jurisdiction to restrain breach of confidence, HT S.R.L. v Wee Shuo Woon [2016] SGHC 15 19 restrict the disclosure and use of privileged documents which have been disclosed to third parties to protect its confidential character. Third, the court may restrain the use of the privileged documents by way of an order to expunge offending portions of pleadings or affidavits. The court is not limited to an order for delivery up or the grant of an injunction. Fourth, such an application must be filed before the privileged documents have been formally admitted into evidence. After the privileged documents have entered into evidence, their exclusion would then fall to be governed by the common law rules on evidence
Then makes the Judgement as follows:
On the present facts, it seemed to me that the Plaintiff continued to have a compelling interest in restraining the use of the Emails. This was his desire to avoid having the contents of his discussions with his lawyer over the conduct of the present suit, which were full, free, frank, and told in an atmosphere of confidence, used against him. One cannot over-emphasise the fact that the Emails concerned the present suit, and that the original documents remained privileged against disclosure (for which privilege has not been waived). On the relevance and significance of the privileged nature of the Emails, I also rely on the discussion below at [60]–[61]. If there were to be any person whom the Plaintiff would have an interest in keeping the information from, it would have been the Defendant, his opposing party. Obviously, that was no longer possible. However, the Plaintiff still has an interest in seeking an order that the documents not be used by the Defendant in the present suit. The prayer to expunge would serve this very purpose.
Further, what weighed heavily on my mind was that the Plaintiff was the victim of a cybercrime, and the Defendant was aware of this fact. The numerous news articles annexed to the Defendant’s affidavit described the extent and reach of the hacking, which resulted in the publication of more than 500 gigabytes of data (pertaining to client files, financial documents, contracts, and internal communications) on WikiLeaks, which is itself a controversial website associated with the publication of large volumes of leaked information. I do not for a moment suggest that the Defendant was responsible for the hacking. HT S.R.L. v Wee Shuo Woon [2016] SGHC 15 25 However, the Defendant was well aware of the circumstances leading to the unauthorised disclosure of the Plaintiff’s information on the internet.
53 Thereafter, out of the substantial amount of contents leaked, the Defendant accessed the Emails. Given the express provisos contained within, the Defendant had clearly been put on notice of the “privileged and confidential” nature of the Emails. Notwithstanding this, the Defendant accessed the information contained within, and generated copies of the Emails for use in the present suit.
54 Considering the circumstances surrounding the massive information leak and how the Defendant came to be in possession of the Emails, as well as the nature of the information within the Emails, it seemed to me that an obligation of confidentiality could still be justly and reasonably imposed on the Defendant in respect of the Emails. Given that the Defendant is the opposing party, the Plaintiff would have every interest in restraining the use of the information in the present suit. To sum up, I was of the view that the Emails in question could still be protected by the law of confidence.
In my view, the Judge has ruled that the e-mails were confidential, but only in the context of the case, taking into account that the Serge Woon stood to gain, while Hacking Team stood to lose from having these documents admitted as evidence.
The Judge also accepted that “the law of confidence would not cover documents in the public domain is because generally, there is no purpose to grant an injunction when the material is already publicly known and accessible” , which implicitly means that for this specific case, there was a purpose, and the fact that the documents are publicly available was irrelevant.
In a round-a-bout way, the Judge affirmed that the law of confidentiality may not apply when there is no purpose, or when there is a strong public interest in divulging the information above and beyond the interest of two parties in a civil suit like this one.
I’m no lawyer, and while I’m struggling to understand the final verdict, the questions raised and answered in the Judgment, in my mind, would not affect the work I’ve done so far. Hopefully! 🙂
Here’s the judgement in full.