Jinxin Inc v Aser Media PTE Limited & Ors

Confidentiality for legal privilege is not determined by whether information is private in an absolute or binary sense. The court must apply the objective test in Coco v AN Clark, asking whether the circumstances imported an obligation of confidence, with particular regard to the information, the persons involved and the permitted uses.

Corporate ownership of servers and rights to monitor or access them do not give a company unrestricted freedom to use or disclose private or putatively privileged material. Shareholder information rights are likewise subject to confidentiality obligations. A final declaration concerning a large body of unidentified documents should not be made on inadequate evidence, particularly where practical alternative disclosure arrangements exist.

Jinxin acquired a majority shareholding in MPS, a sports-rights business, and later brought claims alleging fraudulent misrepresentations and unlawful means conspiracy. During the dispute, Jinxin obtained extensive data from MPS group computer systems, including mailboxes used by several defendants.

Jinxin sought a declaration that the defendants could not claim privilege over any such data because they had no reasonable expectation of privacy in information stored on corporate systems. Alternatively, Jinxin relied on information rights in the shareholders’ agreement. The application concerned whether confidentiality and privilege had been lost, and whether a final declaration was appropriate on the evidence.

1. The application was dismissed. Confidentiality is a necessary condition of legal privilege, but the relevant question is not whether information is wholly private or wholly public. Applying Coco v AN Clark, the court must assess objectively whether the circumstances imported an obligation of confidence. Privacy and confidentiality have related objective features but are distinct concepts and should not be equated.

2. Confidentiality is relational. Information may be confidential as against some persons, or for some uses, but not others. The relevant assessment requires an intensive examination of the information, the persons involved, the extent and purpose of access, and the surrounding circumstances. Privilege is not necessarily lost merely because a document is shown to a third party or disclosed for a limited purpose.

3. Corporate control of servers and the ability of IT personnel to access them were relevant but not decisive. The policies assumed for the purposes of the application permitted monitoring and access for legitimate business purposes. They did not reasonably convey that the company could search for private or privileged material and use it for any purpose, including benefiting a shareholder with an adverse interest.

4. The law’s strong protection of legal professional privilege supported the conclusion that MPS could not pass putatively privileged material to Jinxin merely because Jinxin was a majority shareholder. The evidence did not establish that confidentiality had been lost.

5. The shareholders’ agreement did not authorise the transfer. Clause 9.3 was subject to clause 9.4, which excluded access involving a breach of confidentiality. Read as a whole, the information rights did not entitle a significant shareholder to obtain putatively privileged material relevant to a dispute with other shareholders.

6. Independently, the court would have refused declaratory relief in its discretion. The application concerned approximately 1.5 million unidentified documents, with insufficient evidence about their content, provenance and circumstances of storage. A declaration that all privilege had been lost would therefore have been unsafe. Alternative review arrangements, including information barriers and separate legal teams, could address the disclosure problem.