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High Court tackles the thorny issue of confidentiality in earlier FRAND judgment

David Knight
03/01/2018
We previously reported on the judgment in the FRAND trial ("the 711 judgment"), the sixth in the series of judgments in the Unwired Planet v Huawei patent battle. We now look at the High Court's judgment concerning the controversial issue of confidential information and redaction

We previously reported on the judgment in the FRAND trial ("the 711 judgment"), the sixth in the series of judgments in the Unwired Planet v Huawei patent battle. We now look at the High Court's judgment concerning the controversial issue of confidential information and redaction, a decision which the judge had previously chosen to park.

On the date that the 711 judgment was handed down, another judgment in the same matter also was handed down ("the 705 judgment"). The 705 judgment set out the judge's findings in full. However, because the 705 judgment contained much material alleged by the parties to be confidential it was not made available to the public. Instead the 711 judgment was made available to the public; in essence the 711 judgment is a redacted version of the 705 judgment.

At that time Birss J could have fully analysed the parties' submissions on confidentiality. He concluded, however, that to do so would leave an intolerably long gap between making his judgment and it being released to the public. He chose, therefore, broadly to accept the parties' submissions about confidentiality, make the 711 judgment publicly available with corresponding redactions and then consider afterwards the appropriateness of those redactions. Recently he has handed down his judgment on the appropriateness of the redactions.

High Court decision

Birss J started by reiterating the basic principle that justice should be seen to be done in public, and that the principles of open justice require that a judgment should be published in full unless there are overriding grounds for not doing so. An example of a situation where there are overriding grounds for not doing so is where the case concerns a technical trade secret because it would be destroyed if revealed.

In this case, however, there was no such technical secret - all the allegedly confidential material was information relating to licensing, mostly the terms of existing licences. It is not surprising that when assessing FRAND rates that the commercial details of other licences are relevant, and therefore should form part of the publicly available judgment. Accordingly, Birss J concluded, for such details to be redacted from the judgment would "require powerful reasons, supported by cogent evidence which addresses the details".

In this case, the fact that the existing licences included confidentiality restrictions on licensor and licensee (some of whom were not party to these proceedings) was not of itself sufficient to be a "powerful reason".

Birss J concluded, however, that the widespread publication of the pertinent details of such licences would cause undue interference with the market as it would assist a prospective licensee to negotiate better rates if it is known what rates the licensor has agreed in other licences. He went on to allow many of the redactions to stand, stating:-

"Initially I was doubtful whether the redactions were justified but on reflection I am satisfied that the evidence demonstrates that publication of the commercial licensing information in issue (subject to a few exceptions …) would materially weaken the competitive position of the relevant party in each case, particularly the relevant licensor. That is true not only in a general sense but in specific terms. … all the redactions stand or fall together on the single question of whether that harm is a sufficiently powerful reason to justify redaction here. I have decided it is. The public can understand how the judge reached the conclusions in the main decision without seeing those details. Although, for example, they cannot decide for themselves whether they would agree that the specific figures arrived at are justified by the data, to provide that information would substantially weaken the position of various companies mentioned in the judgment, particularly as licensors but also as licensees. That interference with the competitive position of the telecommunications market is unwarranted."

Some requested redactions, however, were not allowed. The new public judgment (the 2988 judgment) is available

Comment

In the context of setting FRAND rates this is the first time that the English court has had to grapple with the balance between clear and open justice on the one hand, and protecting confidential information on the other. Birss J felt that there was a clear commercial interest in preserving the confidentiality of commercial licensing information that should be respected. He further felt that readers of his public judgment would be able to understand and apply the logic that lead to his decision on FRAND terms without needing the full dataset. One can speculate that the outcome might have been different if it was necessary to make reference to specific data in order to explain his reasoning.

 

 

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