Fortescue Metals Group Ltd & Anor v Argus Media Ltd & Anor

Under section 12 of the Human Rights Act 1998, interim restraint of journalistic publication ordinarily requires the applicant to show that success at trial is more likely than not. In confidentiality cases, the court must balance the public interest in maintaining confidence against the public interest in publication and the importance of freedom of expression. It is not enough that the information is of public interest; the question is whether publication in breach of confidence is justified. Whether pricing information has the necessary quality of confidence is highly fact-sensitive. Relevant considerations include the nature of the pricing information, the extent of dissemination, protective steps taken, and industry practice. The application was refused because the claimants had not shown that they were likely to obtain a permanent injunction.

The claimants, producers of iron ore, sought an interim injunction preventing Argus Media Ltd and S&P Global Inc. from publishing monthly DMTU discounts used in their long-term iron ore pricing formulae. They alleged breach of confidence and relied also on the Trade Secrets Regulations 2018.

Earlier interim restraints had been granted pending a full hearing. The parties proceeded on the basis that English law applied. The central issues were whether the discounts were confidential, whether contractual or equitable duties of confidence bound customers and prospective customers, and whether publication should be restrained under article 10 of the ECHR and section 12 of the Human Rights Act 1998.

1. Application dismissed. The claimants had not established under section 12(3) of the Human Rights Act 1998 that they were more likely than not to obtain a permanent injunction at trial.
2. The approach in Cream Holdings v Banerjee [2005] 1 AC 253 applied. The court had to assess the prospects of success in the particular circumstances, while giving proper weight to article 10 and the relevant countervailing interests.
3. In a confidentiality case, the relevant public-interest inquiry was whether the public interest justified breaching the confidence, rather than merely whether publication of the information was in the public interest. The court had to balance the public interest in maintaining confidentiality against the public interest in publication, applying proportionality and necessity. The principles in Associated Newspapers Ltd v HRH Prince of Wales [2002] Ch 57 and Brevan Howard Asset Management v Reuters [2017] EWHC 644 (QB) were followed.
4. Whether pricing information possessed the necessary quality of confidence was highly fact-sensitive. Generic pricing information was less likely to be confidential than specifically negotiated prices, but information supplied to a limited class for a specific contractual purpose could still qualify. The factors in Faccenda Chickens v Fowler [1987] Ch 117 were not of general application outside their factual context.
5. The DMTU discount was capable of having the necessary quality of confidence, although that quality was not particularly strong. On the contractual wording, the claimants were likely to establish that the discount was a document or thing relating to their dealings, transactions or affairs and was covered by the confidentiality provisions. Prospective customers who received the discount after express confidentiality notices were also probably subject to equitable duties of confidence.
6. It was unnecessary to decide finally whether detriment was an independent requirement of breach of confidence. In any event, the claimants would probably satisfy that requirement if it applied.
7. The previous publication of discounts did not establish that the May 2020 and later discounts were about to enter the public domain. However, the public interest in informed reporting and analysis of the iron ore market was substantial. The discount was generic, had been published for years without effective objection, and publication did not disclose the negotiated terms of individual contracts. The public interest in restraint was therefore insufficiently powerful to meet the section 12 threshold.

1. High Court (Chancery Division): HHJ Hacon granted short interim restraints on 23 and 29 April 2020. Mr Justice Miles dismissed the application for continuation of the interim restraining order on 22 May 2020.