The New York Times has an interesting story that looks at the British legal system, where media law has failed to account for the Internet, leading to some strange situations where “confidentiality” is relative.
On March 17, hours after publishing leaked documents on its Web site showing the lengths Barclays had gone to in order to reduce the taxes it paid in Britain, The Guardian newspaper was ordered by a judge to take the material down. His reasoning was that the bank had a right to confidentiality.
In the ruling, the judge in London, Nicholas Blake, also added a peculiar twist: The Guardian must not tell readers how easy it is to locate the documents at Web sites outside of Britain. It was only the latest example of British courts trying to preserve what it saw as litigants’ rights even in the face of an onslaught of information on the Internet. To some, this may be a final, futile effort. […]
The Barclays case pits two interests against each other, said James Edelman, a law professor at Oxford who argues media law cases. Since 1988, Professor Edelman said, British law has given great protection to the right of confidentiality, applying it to third parties like The Guardian, which received the documents from someone else. Yet, the “public interest” in learning about what is contained in those documents, he said, can often outweigh confidentiality considerations.
Finally, there is a basic factual question: is the material already in the public domain? And this is where the Internet throws a wrench into the proceedings.
The courts recognize, Professor Edelman said, that there is no point in banning the publication of something already widely disseminated. In the Barclays case, the court met in secret to determine if the material had crossed that threshold.
Mr. Rusbridger, who said he, too, was awakened in the wee hours to receive the order to take the material down, characterized the scene: “We were pretending that by discussing this in secrecy in a court in London that no one was discussing it elsewhere.”