[UPDATE: the ruling that was still private at the time of this post was later made public on August 15. See here.]
A few weeks ago I wrote (here) about an important clash in Britain between the right of press freedom and the individual’s right to privacy. The case pits Denis Christel Sassou-Nguesso, the son of the President of Republic of Congo — who is asserting his privacy rights — against the human rights group Global Witness, which is posting certain of his financial records on its web site, here. Sassou-Nguesso seeks an order forcing Global Witness to take down the documents. (Global Witness maintains that those records — credit card bills, correspondence, bills of lading — suggest that Sassou-Nguesso, who heads the marketing arm of Congo’s state-owned oil company, Société Nationale des Pétroles du Congo (SNPC), is supporting his lavish lifestyle with national oil revenue that properly belongs to the destitute people of Congo.)
I noted in my July 13 post that Global Witness had evidently won the dispute — that was obvious because Global Witness was still posting Sassou-Nguesso’s documents — but I couldn’t yet tell you the court’s reasoning, because the judge hadn’t yet issued his written ruling.
A few days later Justice Stanley Burnton apparently issued the written ruling, but only the parties were allowed to see it. Not only could I still not tell you what his reasoning had been, I couldn’t even tell you why I couldn’t tell you. (The lawyers were under gag orders, which prevented them from even explaining what was going on. That’s why the “updates” to my original post may have seemed cryptic and uninformative.)
Now at least the outer layer of the onion has been peeled back. Though Justice Burnton’s ruling explaining his decision is still private, he has now made public a meta-ruling, shedding light on why I still can’t yet tell you what’s in the real ruling. The meta-ruling is here.
Apparently, Sassou-Nguesso’s lawyers have been arguing that the court should not publicly refer to the financial documents they consider to be private, because that would further publicize them, and undermine the claim for damages it ultimately wants to assert against Global Witness. They also want Justice Burnton not to refer publicly to a proceeding going on before the High Court in Hong Kong, even though it was a confidentiality order from that very court that they were seeking to enforce against Global Witness in the High Court in London in the first place. (Sassou-Nguesso’s solicitors at the law firm of Schillings — which has also represented Naomi Campbell, Cameron Diaz, Britney Spears, and Keira Knightley in privacy litigation — allude to that order in a demand letter to Global Witness that Global Witness is also posting on its web site.)
It also looks like — though I’m not sure — the documents at the heart of the dispute were originally produced in connection with that Hong Kong court proceeding, and that someone then leaked them to Global Witness. (It also appears that Global Witness was not an original party to that proceeding, which has raised concerns in Justice Burnton’s mind about whether the Hong Kong court had jurisdiction to issue the confidentiality order requiring Global Witness to take down the documents.)
Sassou-Nguesso had cited as precedent two British privacy law cases in which judges had agreed to keep their rulings nonpublic, either in whole or in part. In his meta-ruling, however, Justice Burnton has decided that those cases are distinguishable, in that in each of those instances the private documents the petitioner was trying to keep secret had never yet been published. (I.e., the defendants had acknowledged that they were committed to publishing them, but hadn’t yet.) In this case, in contrast, the documents are already public, so the cat’s out of the bag. Or, as Justice Burnton writes, quoting Lord Nichols of Birkenhead: “Confidentiality, once breached, is lost for ever.” (Duh.)
Accordingly, if Sassou-Nguesso does not appeal Burnton’s underlying ruling (he has until today to decide), Justice Burnton will make that ruling entirely public. On the other hand, if Sassou-Nguesso does appeal, Sassou-Nguesso apparently will have an opportunity to try to persuade the Court of Appeal to overrule Justice Burnton’s meta-ruling, allowing his underlying ruling to remain confidential until the Court of Appeal decides the underlying case.
(Warning: I may have gotten parts of this post incorrect, but that’s one of the dangers of being deprived of the facts.)
