Letter: Flynt, Romney and the risks of leaking information

FRIDAY, SEPT. 14: On Wednesday, an advertisement appeared in the Bermuda Sun whereby Larry Flynt of Hustler Magazine appealed for the disclosure of Mitt Romney’s unreleased tax returns, offshore assets, bank accounts and / or business partnerships.

In exchange for the release of that information Mr Flynt said he would pay up to $1 Million. 

In an article which appeared in the same edition of the Bermuda Sun, Mark Johnson of Mr Flynt’s publishing Company LFP said that by asking for that information “we are not looking to do anything illegal or encouraging anyone to do anything illegal”.  

Is it then unlawful to disclose private information concerning someone else in Bermuda?

In this article, I shall provide a brief overview of the law that is presently applicable in Bermuda concerning confidentiality so that one may more carefully consider the terms of Mr Flynt’s offer.

At present, there is no privacy legislation which is in force within Bermuda. While the Public Access to Information Act (‘PATI’) was passed in 2010, it has not yet been brought into effect.

Even if PATI was in force, it would still not apply to the situation at hand as that legislation will only apply to information that is held by the Bermuda Government.

While there is presently some discussion concerning the passage of a Personal Information Protection Act, which will protect the information of private individuals, that legislation has yet to be tabled in the House of Assembly.

There is nothing within Bermuda’s Criminal Code which prohibits the dissemination of information in and of itself.

Does this mean that Mr Romney has no legal recourse should his confidential information be disclosed without his consent? 

While Bermuda presently has no legislation that would generally protect Mr Romney’s private and confidential information, there are certain principles of professional ethics which would prohibit such disclosure.

For that reason, if a professional person such as a trader, accountant or lawyer was to breach his or her duty of confidence as owed to a client, the professional body to which that individual belongs would likely impose harsh sanctions against that individual. 

Beyond the rules of professional ethics, what are the protections that are afforded to individuals by the Common Law?

In Bermuda it is possible for a person to sue an individual, whether that person is a professional or not, if the disclosing party breaches a duty of confidence that is owed to the complainant.

Unauthorized disclosure may, however, be justified in the face of a lawful order of the Court or Regulatory body provided that the disclosure is authorized by Bermudian Law. Disclosure out of concern for the public interest is another defence that can be raised though the courts will not usually allow that defence to succeed unless there is an element of wrongdoing that is exposed by the disclosure. 

If an action for breach of confidence is successful, the court then has the power to order the offending party to pay monetary damages to the complainant.

The amount of monetary damages that may be claimed varies and entirely depends on the circumstances of the case.

The Courts of the United Kingdom have, however, made substantial awards in the past for breaches of confidence on the basis that a person who breaches a duty of confidence should not be allowed to profit from his or her wrongdoing.

As Bermuda’s courts generally follow the lead of the British Common Law, it is reasonable to expect that a Bermudian Judge would adopt the approach of the Courts in the United Kingdom when dealing with an action for breach of confidence.

While Mr Flynt’s spokesman, Mr Johnson was clear that the appeal for the disclosure of Mr Romney’s information is out of concern for the public interest, it must be remembered that “what is interesting to the public is not necessarily in the public interest”. This a maxim, which the courts have heeded for many years and would likely apply if someone in Bermuda did disclose confidential information concerning Mr Romney.

In summary if a person were to ‘leak’ confidential information concerning Mr Romney, that individual could face a lawsuit seeking substantial monetary damages thereafter.

This means that although the terms of Mr Flynt’s offer may look good in print, you may want to think twice before taking him up on it.

• Allan Doughty is a Senior Litigation Attorney employed by Trott & Duncan Limited.