Unwired Planet International Ltd v Huawei Technologies Co. Ltd & Anor

Judgments should normally be published in full so that the public can understand and scrutinise the court’s reasons. Redactions require powerful reasons supported by cogent, specific evidence. Relevant considerations include the nature and likely effect of publication, the type of proceedings, the relationship between the information and the judgment, and the relationship between the applicant and the proceedings. Commercial licensing information may justify redaction where publication would materially weaken competitive positions, but only to the minimum extent necessary. General assertions of confidentiality are insufficient.

The judgment resolved applications by the parties and Ericsson for redactions from the confidential full judgment in the FRAND trial. A public version, [2017] EWHC 3083 (Pat), had already been issued as a redacted version of the full judgment, [2017] EWHC 705 (Pat), alongside a more extensively redacted judgment, [2017] EWHC 711 (Pat).

The information concerned existing telecommunications patent licences, including royalty rates and other commercial terms. The central issue was whether the parties had shown sufficiently powerful reasons to justify withholding that information consistently with open justice.

1. Disposition. The applications for redactions were granted substantially, subject to specified exceptions and narrower redactions. The public judgment was to be issued in the resulting form. A proposed UK-only licence was annexed at the parties’ request, but the court did not endorse it as FRAND.

2. Open justice requires judgments normally to be publicly available in full. The public must be able to understand the judge’s reasons and hold the courts to account. Redactions require powerful reasons, supported by cogent evidence directed to the specific information. They must be kept to the bare minimum. General statements that information is confidential or commercially sensitive are insufficient.

3. The relevant factors include the nature of the information, the effect of publication, the nature of the proceedings, the relationship between the information and the judgment, and the relationship between the person seeking restraint and the proceedings. Different proceedings may produce different balances, without any difference in the underlying open justice principle.

4. The commercial licensing information materially informed the FRAND royalty analysis. Nevertheless, the evidence showed that publication of particular existing licence terms would materially weaken the competitive position of relevant licensors, and to a lesser extent licensees, in future negotiations. That constituted a sufficiently powerful reason for redaction in this case.

5. The court rejected arguments based on an alleged risk that readers would misunderstand two aspects of Ericsson’s licensing practice. Those arguments were insufficiently specific and could have been addressed by explanation or amendment. Ericsson’s continuing financial and procedural connection with the proceedings also meant that it could not be treated as an uninvolved third party.

6. Redactions were refused or limited where the information was historic, already public, technically erroneous, insufficiently harmful, or necessary to preserve a significant aspect of the reasoning. The court considered that the public could understand the essential reasoning without access to the specific confidential figures.

First-instance decision concerning confidentiality applications arising from the FRAND trial. The judgment referred to the confidential and public versions issued as [2017] EWHC 705 (Pat) and [2017] EWHC 711 (Pat).