The requirement that the information has to be confidential in nature is now less strictly applied. While the information must have the basic attribute of inaccessibility to others, the court will not refuse an injunction because the information has leaked out to a limited extent or is available by any person with some degree of background knowledge (for example, information contained on a website is in principle available to any member of the public, but may in practice require knowledge for it to be accessed). However, there will come a point – as in the Spycatcher saga where a book containing confidential information was being widely published abroad – when it is plainly pointless to pretend that there is any secret left to be preserved.
There is obviously potential for a clash of interests here: between the rights of the person wanting the information to be kept secret, and the rights of the person who wants to disclose it or the public interest in that disclosure. For example, an employee may learn secret information about his or her employer during the course of his or her employment. The employer may expect this to be kept secret. But where this information reveals serious wrongdoing, it may be in the public interest for the employee to reveal it to the relevant authorities and the media may have a legitimate interest in notifying the public. These latter rights involve considering the principle of freedom of expression and the public interest in disclosure of confidential information. In many cases, a balance of the competing interests is often very difficult to strike.