When considering an application to anonymise and/or redact material that is commercially sensitive, the Employment Appeal Tribunal (EAT) has held in Frewer v Google that tribunals must follow a step-by-step approach. This involves a consideration of whether the document is both relevant and necessary for the fair disposal of the proceedings.
Mr Frewer, who had worked for Google since 2007, was dismissed summarily in June 2020 following complaints by two female colleagues that he had sexually harassed them at a dinner in September 2019. He brought a number of claims, including automatically unfair dismissal for making protected disclosures (in other words for blowing the whistle) about Google’s alleged anti-competitive behaviour.
Google applied under rules 29 and 50 of the Employment Tribunal Rules of Procedure 2013 for an order that the names of their clients should be anonymised in both the agreed bundle of documents and in witness statements; and that “commercially sensitive and irrelevant” information in the bundle of documents should be redacted, including details of its overall revenue figures which were not client specific.
Rule 29 states that tribunals have the power to make a case management order “in the interests of justice”.
Rule 50 states that tribunals may make an order to prevent or restrict the public disclosure of any aspect of the proceedings if it considers it to be “necessary in the interests of justice”.
The tribunal agreed with Google on the basis that making the orders would have a minimal impact on the principle of open justice, while the potential of commercial harm to their clients was “real”. The tribunal was satisfied that Mr Frewer’s case would not be prejudiced by the orders, as all the relevant documents containing the confidential and commercially sensitive information would be disclosed to him in any event.
Mr Frewer appealed, arguing that the tribunal did not have the power to make the orders requested, that they were contrary to the open justice principle and that any consideration of redaction should take place only after disclosure.
The EAT held that the tribunal was wrong to make the anonymisation order without considering the right under Article 10 of the European Convention on Human Rights to freedom of expression. Mr Frewer had alleged that Google had acted anti-competitively by ensuring that its two main clients received a disproportionate number of hits when people searched for information about holidays. Even if the court could decide the case without knowing the names, there was a strong argument that the press would want to report them and the public would have a genuine and legitimate interest in knowing who they were. By failing to consider this point, the tribunal had undermined the principle of open justice.
With regard to the order to redact, the EAT held that tribunal had failed to apply the necessary step by step consideration of the documents described in the order as being “commercially sensitive and irrelevant”. It seemed unlikely to the EAT that all 3,000 documents that had been disclosed were, in fact, relevant. Rather than make a blanket order for redaction, therefore, the tribunal should have considered whether the document was relevant (in other words, whether it was likely to support a party’s case or not); and then whether it was necessary in order to dispose of the case fairly. If it did not meet these two criteria, it did not need to be disclosed.
This case might seem esoteric, but it is actually really important. Anonymization and redaction is censorship, but the open justice principle says that justice “must be seen to be done”. Indeed, the open justice principle is so important that there is a rebuttable presumption against anything which might breach it, and it is also why hearings are in public and why decisions are published online.
However, it is a balancing act for the courts because other principles and rights also need to be protected, such as those of privacy and freedom of expression. Recent cases involved a stripper who wanted to remain anonymous to avoid being stigmatized by her job; as well as someone who wanted references to her own misconduct removed to avoid her reputation and employment prospects becoming “collateral damage” in someone else’s claim. Google’s efforts to protect its customers’ confidential information are a similar thing.
The information genie cannot be put back into the bottle and so it is crucial to properly decide whether light or shadow is more important this time. This case helps with that process.