Have you overheard a private conversation in the workplace? Disclosure of this information risks breaching duties of confidentiality and data protection obligations under GDPR.
The English High Court established a new authority on privacy and GDPR in the case of Clearcourse Partnership and others v Jethwa  EWHC 1199 (QB). The court considered issues relating to breach of confidence, misuse of private information, and unlawful processing of personal data. While the Irish courts have not dealt with these issues in the same context, the case offers a helpful insight into how the courts might approach cases of a similar nature.
In this case, Clearcourse the claimant entered into a sale and purchase agreement (SPA) with a company in which Mr Jethwa, the defendant was a partner and CEO during the negotiations. The negotiations were taking place in Mr Jethwa’s offices, where there was a CCTV camera in the meeting room. During a break in the negotiations Mr Jethwa overheard Clearcourse representatives discussing their strategy. Mr Jethwa took a screenshot of the live CCTV footage from the meeting room. At the time, Mr Jethwa did not reveal that he had overheard this conversation. The SPA concluded, but unfortunately a dispute arose between the parties. During the dispute Mr Jethwa sent the screenshot to Clearcourse, threatening to publish their private discussion on social media. In response, Clearcourse made an application for an interim non-disclosure order (INDO).
Clearcourse brought claims against Mr Jethwa for beach of confidence, misuse of private information, and breach of data protection rules under the General Data Protection Regulation (GDPR). Clearcourse were successful in their application, and the INDO was granted. In order for an INDO to be granted, the Claimant must show that they are likely to succeed at the trial of the action. When considering the Claimant’s chance of success at trial, the Court had regard to each of their claims as follows.
Breach of confidence
In order to successfully plead a claim for breach of confidence, the claimant must demonstrate that (i) the content of the discussions has a confidential quality (ii) that the defendant had a duty of confidence, and (iii) that there had been an unauthorised use, or a threat to use this information in a manner that would damage the claimant.
When applying this test, the court was satisfied that the claimant was likely to succeed at trial on all three limbs of their breach of confidence claim. Interestingly, the court noted that the fact that the claimant made no effort to eavesdrop, does not relieve them of their duty of confidentiality.
Misuse of private information
To succeed in this type of claim, the claimant must prove that (i) they had a reasonable expectation of privacy, and (ii) their right to privacy is greater than the rights of others, such as the defendant’s right to freedom of expression.
In this case, the court found in the claimants favour, and noted that Mr Jethwa’s right to freedom of expression was outweighed by the claimant’s right to privacy.
Interestingly, the court held that the screenshot of Clearcourse’s representatives constituted personal data, which had been retained without their consent, and without any lawful basis for processing. The defendant in this case failed to obtain consent of the data subjects to this processing. The court noted that the general CCTV warning was not sufficient to demonstrate consent in this situation. On this basis, the court found that the claimant was likely to succeed at trial on this claim as well.
How might the Irish Courts deal with this
While the Irish courts have not directly dealt with INDOs, they have received passing reference. In the case of O’Brien v Red Flag Consulting Limited  IEHC 86 the court stated that in appropriate circumstances INDOs are “are entirely proper, and a court may come to the aid of a person who needs that level of special protection, where untoward and secret activity is underway seeking to damage a person. A court will, in an appropriate case, make such extraordinary orders.”
In England, the case of Cream Holdings Ltd v Banerjee & Others  UKHL 44 established the test for INDOs. In this case, the House of Lords held that, before granting an INDO, the court must be satisfied that the claimant would “more likely than not” succeed with its underlying claims if they were pursued to trial.
The case of Cream Holdings was cited with approval in Ireland in the case of Murray v Newsgroup Newspapers Ltd  2 IR 156. While the facts in Murray are substantially different to Clearcourse, it seems reasonable to assume that were the Irish courts asked to determine whether an INDO should be granted, the test as set out in Cream Holdings, as approved in Murray would be applied, namely that the claimant has established a convincing case such that it is more likely than not that his or her cause(s) of action would succeed at trial.
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About the Authors
Laura is a partner in the Commercial & Business team at Hayes solicitors. Laura advises clients on a diverse range of corporate and commercial matters and regulatory requirements. She is an experienced adviser on terms and conditions of sale and purchase, IT issues, data protection, product liability, advertising and promotions, intellectual property and a wide range of commercial agreements.
Ciara is a solicitor in the Commercial and Business team at Hayes solicitors. She advises on a wide range of commercial, regulatory and contractual issues. Ciara also practices general litigation and dispute resolution with a specific interest in defamation and intellectual property matters.