British Broadcasting Corporation v Harpercollins Publishers Ltd & Anor  EWHC 2424 (Ch) – Read judgment
As has been widely reported, the BBC has failed in its attempts to obtain an injunction preventing the driver Ben Collins from revealing in an autobiography that he was The Stig in Top Gear. On 4 October 2010 Mr Justice Morgan handed down his reasoned judgment in the case, which has been summarised on the Inforrm blog.
The judgment itself contains few surprises. Morgan J held that Collins himself was not a party to any contracts with the BBC, the contracts in question having been agreed between the Corporation and a company established to service Collins’ business interests (para.20). It followed that the BBC had no claim in contract law against him personally for an alleged breach of a confidentiality clause. However, Collins was still bound by an equitable duty of confidentiality that prevented him from revealing The Stig’s identity (para. 20). Morgan J considered that this duty would still have applied at the date of the trial if this information had continued to be confidential (para. 50). However, as a result of numerous press reports (para. 52):
For all practical purposes, anyone who would have any interest in knowing the identity of The Stig now knows it. The identity of The Stig is no longer a secret and it is no longer confidential information.
Applying the leading case of AG v Guardian Newspapers (No. 2)  1 AC 109 (the famous “Spycatcher” case), Morgan J held that once information had entered the public domain to such an extent that it could not be considered confidential, then the principle of confidentiality cannot apply to it. Hence Collins had been bound by his duty of confidentiality when it was not known that he was The Stig, but was no longer bound because those who care – and it is appears that some people do – already know that he is the man in the helmet.
Morgan J’s judgment has not broken any new legal ground. However, as the Inforrm Blog points out, it does reinforce the rejection of the argument that a court can continue to prevent a person from disclosing information that has ceased to be confidential where that person has benefitted from breaching his equitable duty of confidentiality in the past. The BBC had made submissions on this point, based on the case of Schering Chemicals Ltd v Falkman Ltd  1 QB 1. Morgan J dismissed these, citing both the Spycatcher case and the recent decision of Arnold J in Vestergaard Frandeon A/S v Bestnet Europe Ltd  FSR 2. However, he stressed that he was dealing with the equitable duty of confidence, and not with the effect of any contractual restriction on disclosure of information.
The case has sparked a debate as to the public interest in, and indeed the morality of, the BBC using money from the licence fee to seek an injunction against a rival publisher. In the Guardian, Afua Hirsch was highly critical of the Corporation’s decision, seeing it as an affront to free speech, a ridiculous waste of money, and a descent into using the “dirty weapon” of an injunction. She repeated speculation that the BBC’s decision to fight the case was part of a “proxy war” against Rupert Murdoch, the owner of Collins’ publisher. Her comments were attacked by James Wilson on Halsbury’s Law Exchange. Wilson argued that the case had “nothing whatsoever to do with free speech”, and was at heart a commercial dispute in which one side sought to protect its valuable, confidential information through the (perfectly proper) remedy of an injunction.
Perhaps both sides over-state their case. The BBC, a commercial enterprise as well as a public institution, has a right to defend its commercial interests and information, and where this can only be done through an injunction it is not “dirty” or unprincipled to seek one. However, the case did have something to do with free speech, and in particular Collins’ freedom to talk about his professional life when others were doing so. Both parties acknowledged this by accepting that s.12(3) of the Human Rights Act 1998 applied, so that the test for whether an interim injunction should be granted was higher than in non-freedom of speech cases [see para. 9]. As s.12(1) states: “This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.”
Taking a longer view, BBC v The Stig is not going to enter the annals of legal history in the way that the Spycatcher case did. This is as it should be. The latter balanced the right of the British public to know what was being said elsewhere about the allegedly undemocratic and criminal activities of their own security services, against the responsibility of the state to protect the secrecy and operational effectiveness of its intelligence agencies. In contrast, the question of which relatively unknown racing driver taught James Blunt to motor round a disused airfield is pretty insignificant.
Sign up to free human rights updates by email, Facebook, Twitter or RSS
Return to home page or read more: