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Report No. 179

The learned law Lord also observed:

"in certain circumstances, the public interest may be better served by a limited forum of publication perhaps to the police or some other authority who can follow a suspicion that wrong doing may lurk beneath the cloak of confidence. Those authorities will be under a duty not to abuse the confidential information and to use it only for the purpose of their inquiry".

In Francome v. Daily Mirror, 1984 (1) WLR 892, the Court of Appeal held that the Daily Mirror could not, however, publish confidential information which suggested that a jockey had been engaging in misconduct in as much as public interest would be equally served by a disclosure to the police or to the Jockey Club.

A disclosure is more likely to be reasonable if it is about an on-going or future threat. This is based upon the general principle related to law of confidence. (Weld Blundell v. Stephens, 1919 (1) KB 520: Malone v.Metropolitan Police, 1979 (2) WLR 700. Schering Chemicals v. Falkman, 1981 (2) WLR 848.

In W. v. Egdell, 1990 (2) WLR 471, the Court of Appeal held that it was lawful for a consultant psychiatrist to disclose information about an inpatient to the medical director at the patient's hospital, where the consultant genuinely believed that a decision to release the patient was based on inadequate information and posed a real risk of danger to the public.

However, the court held the sale of his story to the media would not have been justified, nor would an article in an academic journal, unless it had concealed the patient's identity. Where the disclosure breached a duty of confidence owed by an employer to a third party, in determining the reasonableness of the disclosure, it will be important to asses the affect of 52 the breach on the right of the party and, in particular, any unjustified damage it caused him.

But more recently, in Re a Company's Application (1989) (3) WLR 265, the High Court refused to grant an injunction preventing an employee in the financial service sector from disclosing confidential information about his company to a regulatory body, notwithstanding that the disclosure might be motivated by malice. Scott J. held that it was for the regulatory authorities to find out the truth. It was observed as follows:

"It may be the case the information proposed to be given, the allegations to be made by the defendant to FIMBRA and for that matter by the defendant to the Inland Revenue, are allegations made out of malice and based upon fiction or invention. But if that is so, then I ask myself what harm will be done. FIMBRA may decide that the allegations are not worth investigating. In that case, no harm will have been done. Or FIMBRA may decide that an investigation is necessary. In that case, if the allegations turn out to be baseless, nothing will follow from the investigation. And if the harm is caused by the investigation itself, it is a harm implicit in the regulatory rule of FIMBRA".

In addition, in UK, it was held that a reprisal against a witness who has given evidence in legal proceedings may well amount to Contempt of Court (Att. General v. Butterworth, 1963 (1), Q.B. 696 and Chapman v. Honing 1963. 2. Q.B. 502).

Pressure exercised by an employer on a whistle blower may be regarded as breach of an implied term that 'employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously challenge the relationship of confidence and trust between employer and employee'. (Woods v. W.M. Car Services Ltd., 1981, IRLR 347).

Regulation 12 of the Regulations for Management of Health and Safety at Work, 1992 (UK) permitted complaints by employees regarding dangerous working conditions to the employer first. In Harris v. Silicon Timbers Finance Ltd. (15) case 59214/93, Mathew Harris' complaint to the company about the ill effects of Lindane, a wood preservative was in question. The employee was dismissed on account of the disclosure. He was awarded 8730 Pounds as damages for unfair dismissal.

Duties of confidence reposed in an employee in the public sector, it was held, can be treated as valid only if they do not conflict with public interest. A.G. v. Jonathan Cape Ltd. 1976(1) AC 109. It was further held 54 that lack of public interest in the disclosure of information was a prerequisite for any duty of confidence.

It is for the Court to decide whether such disclosure was in public interest or not. British Steel v. Graneda Television 1981 AC 1097. In that case the Court ordered the return of confidential documents that would reveal the identity of the employee who had leaked them to Graneda Television. The documents revealed mismanagement and Government intervention in a publicly owned company.

From the above judgments of the English courts, it is clear that even without a statute, the English courts granted protection to disclosures by an employee in regard to the action of his employer, which were detrimental to societal interests.

Public Interest Disclosure and Protection of Informers Back

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