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Law Column: Always respect confidentiality – and check who you are sending your email to

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We all know that heart stopping moment when you realise you have just sent a confidential email to the wrong recipient. It’s awful. It would be even more awful if you realise you had just sent confidential advice from your barrister to your opposition. Whoops!

An investigating officer of the Advertising Standards Authority (“the ASA”) who we shall call Tom had been investigating a complaint about a billboard advert that attacked the record of the Royal Bank of Scotland (“RBS”). The billboard was apparently funded by Mr Robert Mitchell and a company associated with him.

I am sure that Tom will never forget the day, 31 May 2019 at 12:29. He hit send on an email to Mr Mitchell which attached (1) the original complaint; (2) a photograph of the billboard; (3) an exchange of correspondence with Mr Mitchell; (4) draft recommendations in respect of an advertising complaint (so far not so bad); (5) an email chain including legal advice from a partner at the law firm acting for the ASA (oh no); and (6) a written opinion of counsel from 2009. Needless to say Tom very quickly tried to recall the email but it was too late.

A further email was sent to Mr Mitchell informing him that the earlier email was confidential and asking him to delete it. A letter was sent reiterating these points and the ASA’s solicitor even left Mr Mitchell a voicemail. The ASA explained that if Mr Mitchell didn’t delete the email with the attachments, it would make an application to the Court for an injunction.

Mr Mitchell made it clear that he would not be deleting the email. Instead, Mr Mitchell stated that the situation should encourage the ASA to reflect on its conduct and he insisted that he receive an apology.

The injunction application was issued and Mr Mitchell didn’t attend the hearing. Mr Justice Warby heard the application. He said that one of the most important questions to consider was whether there was a sufficient threat or risk that Mr Mitchell would, unless restrained, carry out the acts that the injunction would prohibit.

The ASA highlighted a number of documents authored by Mr Mitchell including a tweet where he indicated his intention to misuse the information. In addition, Mr Mitchell had previously boasted of “being the individual who leaked” an FCA investigation report “for all the world to see”. Mr Mitchell had informed the ASA that he did not think he was bound by any confidentiality provisions of the ASA’s regime. His letters to the ASA also suggested that he believed the email and attachments were in the public interest and therefore should be disclosed – although he seemed to come to this conclusion himself, giving no evidence as to why he thought this. Overall, Mr Mitchell’s conduct was quite helpful to the ASA.

Warby J reiterated that ASA had to show that, at trial, it would be “likely to establish that publication should not be allowed” i.e. whether publication of the email and the attachments would be a breach of confidence. Taking into account the nature of the email and the attachments, and the conduct of Mr Mitchell, Warby J considered that ASA would be successful and ordered that an interim injunction be made preventing Mr Mitchell from disclosing the email and the attachments.

Specifically looking at the legal advice in the attachments, Warby J went on to say that, on the face of the information, it was clear that it was confidential and it was protected by legal professional privilege. A reasonable person would have known it was confidential and there was no public interest to override confidentiality. It was so obviously a mistake given that the email was addressed to the solicitor by his first name, and there was no reason to depart from the default rule that privilege material may not be used or disclosed by Mr Mitchell.

If you happen to be in Mr Mitchell’s position one day, and you receive an email which clearly isn’t meant for you, I wouldn’t recommend taking the same stance as Mr Mitchell. It didn’t work out well for him and may mean legal problems ahead!

The morale of the story, delete the autofill email addresses on your Outlook (other email suppliers are available).

There was a happy ending for Tom – he still has his job – but I’m sure he won’t do that again!

Luckily for most of us, our accidental emails aren’t posted all over the internet and trawled through the court for all to see.

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