Cyber threats to confidential and privileged information

15 August 2019

On 14 August 2019, the High Court of Australia delivered judgment in Glencore International AG v Commissioner of Taxation. That case considers the operation of legal professional privilege in circumstances where documents were stolen from the electronic file management system of a law practice and consequently obtained by the defendants.

The facts in Glencore can be broadly summarised as follows:

  1. Glencore asserted legal professional privilege over the ‘privileged documents’ on the basis that they were created solely, or for the dominant purpose of the provision of, legal advice.
  2. Glencore contended that the privileged documents were amongst a number of other documents stolen from its solicitors’ electronic file management system and disseminated to, among others, the International Consortium of Investigative Journalists.
  3. The privileged documents were ultimately disseminated to the defendants. A request was made for return and an undertaking that information contained within same would not be relied upon. The defendants declined those requests.
  4. Glencore sought an injunction restraining the defendants from making use of the privileged documents or any information contained in, or which may derived from, the privileged documents. It submitted that:
    1. Legal professional privilege has been recognised by decisions of the High Court as a fundamental common law right and thus an injunction could be ordered in equity's auxiliary jurisdiction
    2. The rationale for legal professional privilege is the furtherance of the administration of justice through the fostering of trust and candour in the relationship between lawyer and client. The recognition of an actionable right to restrain the use of and recover privileged documents advances this policy
    3. The provision of a remedy may also be seen as necessary because it is unsound for the privilege to be recognised as a fundamental right, but for confidentiality to provide the only basis for its enforcement.
  5. The defendants rejected Glencore’s claim alleging that no cause of action supported its relief sought. The defendants further submitted that they were entitled to retain and use the documents in accordance with Statute.

In considering Glencore’s application, the High Court concisely examined the historical operation of legal professional privilege, issues of admissibility, the concept of immunity to the compulsion to produce documents and the public interest. Noting same, the High Court declined to order the relief sought by Glencore concluding that, among other things, legal professional privilege is not a legal right which may found a cause of action. Rather, legal professional privilege is only an immunity from the exercise of powers which would otherwise compel the disclosure of privileged communications.

Whilst the decision in Glencore has universal application to law more broadly, it may have significant impact for family law litigation. In particular, it identifies the risks associated with the possible use of unauthorised privileged and/or confidential information disseminated to third parties. Such risks are, arguably, greater in family law matters having regard to the technologies used and enjoyed by families.

The case in Glencore therefore highlights the importance to take proactive steps to maintain and secure privileged and/or confidential information when commencing a family law matter. Such steps may avoid legal issues arising (as they did in Glencore) which can distract parties from an overall resolution and/or undermine their position(s) more broadly.

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