Hacked legal data retains privacy status

The Court of Appeal has ruled that restricted legal documents posted on the WikiLeaks website do not lose their confidential status.

To rule otherwise would be to encourage hacking and pilferage of such material, it said.

The apex court was clarifying the issue in its ruling in favour of a company, which had sought to expunge confidential e-mails culled from WikiLeaks by a former employee who was being sued by the firm.

The ex-staff wanted to use the documents as part of his defence.

Wrote Judge of Appeal Tay Yong Kwang in judgment grounds released last week: "We did not think that the confidential character of the information in the e-mails had been lost in any way.

"The information is protected by legal professional privilege and there was certainly nothing before the court to suggest that the privilege had been waived."

In 2015, Italian company HT, which deals in security technology for law enforcement and intelligence agencies, sued former employee Wee Shuo Woon for employment contract breaches.

Mr Wee denied the claims and countersued for $23,545 in unpaid wages. HT denied the unpaid salary claim.

Sometime later, in July 2015, HT's computer systems were hacked and some 500GB of data stolen. The data was later posted on the WikiLeaks website.

It included confidential e-mails between HT and its lawyers relating to legal advice and information on the firm's suit against Mr Wee.

Mr Wee applied to strike out the bulk of HT's claims, using the e-mails to back his application.

HT, through lawyer Adrian Tan, from Morgan Lewis Stamford, then applied to expunge all references to the e-mails in Mr Wee's affidavits.

An assistant registrar granted HT's application. Mr Wee appealed to a Judicial Commissioner, who affirmed HT's application.

Mr Wee then appealed to the apex court through lawyer Nicholas Lazarus, from Justicius Law Corporation.

The lawyer argued, among other things, that there was nothing left to protect, given that the e-mails were accessible to the public and no longer confidential.

But the court disagreed and dismissed the appeal. It noted that Mr Wee knew the documents were confidential and privileged, and he would have had to sieve through the mass of hacked data to locate the e-mails.

And although the e-mails were "theoretically available" to anyone doing an intense search on WikiLeaks, they were not public knowledge, said the court.

It said: "Merely making confidential information technically available to the public at large does not necessarily destroy its confidential character. Public media , in particular the Internet, must not be the gateway through which all confidentiality is dissolved and destroyed."

The three-member court comprised Justice Tay, who delivered the ruling on behalf of the court, Chief Justice Sundaresh Menon and Judge of Appeal Andrew Phang.

vijayan@sph.com.sg


This article was first published on Apr 06, 2017.
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