Core Principles Governing Redactions

Although the case was specifically concerned with trade secrets and confidential financial information that might be revealed in a handed down court judgment, I have sought in this article to extract from the case, the common principles and approach the court should take and apply to all types of litigation.

The decision in Optis v Apple provides authoritative guidance on balancing the interests of justice with the principle of open justice, thereby clarifying the legal test for redactions and the rights of third parties seeking to protect confidential information in UK disputes.

Lord Justice Birss gave the leading judgment, with which the other judges (Sir Julian Flaux, Chancellor of the High Court, and Lord Justice Zacaroli), agreed.

The judgment clarifies the test for redaction of confidential information and confirms that courts will redact confidential information if it is clear that the interests of justice in requiring redactions are stronger than the interests of open justice, and provides guidance to assist parties with this issue.

In the Optis case it applies that test to financial information both expressly read from, but also derived from, confidential licences between the parties to the litigation and a number of high profile third parties.

This provides general guidance for the courts on achieving justice, including in relation to the basis on which third parties can apply for corrections of errors under the slip rule.

The Background

Optis and Apple have been locked in multi-jurisdictional litigation for some time concerning the FRAND rate and terms for Apple's use of Optis' patented technology.

Key points from the UK Court of Appeal's judgment:

In relation to justice, Birss LJ noted that transparency and open justice are crucial in a democratic society. The default position is therefore that hearings will be conducted in public, and judgments will be made available to the public unredacted. However, there are exceptions to open justice, which might justify the court sitting in private, or judgments being made available to the public only in a redacted form, where the interests of justice itself displace the usual requirement for open justice. These exceptions were at the heart of this case.

What test do UK courts apply when deciding whether to redact confidential information?

In a consequentials judgment Marcus Smith J had decided that there were two tests to determine whether confidential information should be redacted. However, the Court of Appeal held that there is no “new test” of confidentiality, instead confirming that there is only one test when considering redaction and that test does require the courts to balance open justice and the interests of justice, as reflected in Unwired Planet v Huawei and InterDigital v Lenovo.

Birss LJ referred to the principles set out in his judgment in Unwired Planet as still being relevant, in particular paragraphs [23] and [24], which stressed that redactions require "powerful reasons, supported by cogent evidence which addresses the details", and that factors which will be relevant include:

• The nature of the information itself (technical trade secrets or private information about family life may be more readily redacted).

• The effect of publication of the information (publication of technical trade secrets would destroy the technical trade secrets themselves).

• The nature of the proceedings (confidential information may be redacted in competition law claims to encourage leniency applications).

• The relationship between the information and the judgment (for this factor, the more important the information to the understanding of the judgment, the less likely it will be appropriate to redact).

• The relationship between the person seeking to restrain publication of the information and the proceedings themselves (third parties may be better placed to secure redaction than a party which has relied on its own confidential information to make good its claim).

The court confirmed that in all cases, the question is whether, in the circumstances, the principle of open justice gives way to the interests of justice itself.  However, some cases may more readily meet this criterion (e.g. the interests of justice will almost always require the redaction of a technical trade secret, because otherwise the result of the action would be the loss of the right, which was sought to be protected, regardless of the outcome between the parties).

As well as the need to balance the needs of justice and open justice discussed above, another important point made in relation to justice generally is that where confidential information is confidential to both a party to a dispute and a third party (here, a counterparty to the licence containing the confidential information), the third party should always be afforded the possibility to be heard by the court in relation to the issue of confidentiality in particular when a hearing takes place at which confidentiality is being discussed.

In more everyday cases in which I have been involved, concerning child sexual abuse (CSE), the main justification for redactions is to protect the identity and data of non-involved third parties. Occasionally, a redaction may need to be made to avoid unnecessary distress to the claimant. In both cases I consider that the decisions fit the general principle reiterated in the Optis case that the overall justice is better served by not revealing these details than if they were to remain unredacted. There is also of course in the former case the justification provided by Data Protection Legislation.