In a recent decision, the Singapore Court of Appeal concluded that evidence which had been made available on WikiLeaks as a result of the respondent's computer systems being hacked had not lost its confidential and legally privileged status: Wee Shuo Woon v HT S.R.L  SGCA 23.
Although the emails in question had become potentially accessible by the public carrying out an "intense search", they constituted a minute fraction of approximately 500GB of data that had been pilfered from the respondent's systems. The court noted that merely making confidential information technically available to the public at large does not necessarily destroy its confidential character. On the facts of this case, it could not be said that the evidence was public knowledge or in the public domain, and therefore it was still protected by the law of confidence.
Although this is a Singaporean decision, it is based in large part on English case law. Assuming the same approach is taken here, it suggests that privileged and confidential information will not necessarily lose that status merely because it becomes technically available to the public, for example by unauthorised publication on the internet, if in fact it has not been accessed and is unlikely to be widely accessible or (if accessed) easily identified and understood; all the more so if the information had been obtained by stealth, trickery or by otherwise improperly.
The decision is particularly relevant and important in light of recent cyber attacks on political parties and others, resulting in mass releases of confidential information on the internet. Click here to read more about the decision on our Asia Disputes Notes blog.