ASA seeks injunction for email sent to wrong recipient

ASA v Robert Neil Whyte Mitchell

The question 

Is it possible to obtain an injunction to restrain the use or disclosure of confidential information contained in emails accidentally sent to the wrong recipient? Also, is correspondence relating to ASA complaints confidential? 

The key takeaway 

The case reiterates the questions that the court will ask when deciding whether to grant a prohibitory injunction in breach of confidence situations, namely whether there is a sufficient threat or risk of the respondent carrying out the acts which the injunction would prohibit and whether the applicant was more likely than not to establish at trial that publication should not be allowed. It also helpfully confirms the confidential nature of ASA complaints, and reminds us all of the dangers of email autofill! 

The facts 

An ASA investigating officer was dealing with a complaint about a billboard advertisement attacking the record of the Royal Bank of Scotland. The ad was apparently funded by the defendant Robert Mitchell. The investigating officer accidentally sent an email and attachments relating to the complaint (including legal advice) to Mr Mitchell. Mr Mitchell was repeatedly asked to delete the emails due to their confidential nature but did not do so.

The ASA issued an application for interim injunction prohibiting Mr Mitchell from using, publishing, communicating or disclosing the email, attachments and information derived from them on the grounds that their contents were confidential and partly legally privileged. Mr Mitchell refused to attend the resulting hearing on the basis that he was not domiciled in England and Wales. 

The decision

The judge granted the ASA’s application as there was a sufficient threat or risk that Mr Mitchell would, unless restrained, carry out the acts which the injunction would prohibit and that the ASA was “more likely than not” to establish at trial that publication should not be allowed. 

In terms of breach of confidence, the judge explained that documents and correspondence relating to ASA complaints were confidential by nature, as complaints required anonymity to avoid “the chilling effect” of publicity. Moreover, disclosure of complaints information would be harmful to the public interest as confidentiality in ASA processes is required to prevent advertisers from gaining an undesirable insight into the private thinking of their regulator. 

As for the jurisdiction point, the judge was satisfied that all practical steps had been taken by the ASA to notify Mr Mitchell of the application as required by s12(2) of the Human Rights Act 1998, therefore the court was able to grant relief with Mr Mitchell not being present or represented. 

Why is this important?

The case provides a useful justification for why ASA correspondence relating to investigations into complaints is confidential and why it is strongly in the public interest to uphold their confidentiality. 

Any practical tips?

Staff should be warned of the potential implications of sending unencrypted confidential information by email and be advised of protocols to ensure the security of correspondence and to minimise the risks. 

Above all, be wary of the email address autofill when sending emails! Remember, injunctions don’t come cheap.