• William Kanaan

Court restrains disclosure of a private conversation

The High Court granted an interim non-disclosure order (INDO) to restrain disclosure of a private conversation overheard through a wall during a break in business negotiations.

The conversation overheard included discussion of negotiations to purchase a seller’s company, the buyer’s strategy for the meeting and negotiations and plans for the future of the target company, and their impressions of the seller. The seller had also taken a screenshot of the buyers having the conversation on his company's visual recording system.

During a subsequent dispute between the parties, the seller sent the buyer text messages containing the screenshot and threatening to disclose the information to third parties.

The buyer sought an INDO, claiming breach of confidence, breach of the General Data Protection Regulation ((EU) 2016//679) GDPR and UK GDPR, and misuse of private information. The court held that the buyer/claimant was likely to succeed in relation to these claims at trial.

Regarding breach of confidence, the court's reasoning included that the subject-matter was such as to attract confidentiality. Whether or not the seller was actively eavesdropping, the duty of confidence did not arise only when a person actively sought out private and confidential information. A duty of confidence could arise when a person had notice that the information they received was of a confidential nature.

Regarding misuse of private information, a person in the seller’s shoes would regard the buyer's conversation, behind closed doors, as giving rise to a reasonable expectation of privacy. There was no realistic justification for disclosure.

In relation to the UK GDPR, the court held that the screenshot contained the buyer's personal data, which had been compiled and retained without their consent. The general CCTV warning in the seller’s offices did not assist in establishing the buyer’s consent to the seller’s distinct private and personal copying and storage of their images.

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