The Stig revealed: why, and does it matter?
6 October 2010
British Broadcasting Corporation v Harpercollins Publishers Ltd & Anor [2010] 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) [1990] 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 [1982] 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 [2010] 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.
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Yes I suppose my statement that the case had “nothing whatsoever to do with free speech” should have been more carefully worded to mean that the instant case had nothing to do with free speech. As Dr Clarke points out there could be occasions on which a court would not enforce a private contract, if it contained some ludicrous clause restricting one contracting party from saying anything about anything.
Having said that, it is a bit narrow to describe such a clause as a free speech issue, since the same reasoning applies to other contractual requirements which are absurd or contrary to public policy, such as penal clauses in damages payments, or cases involving the commission of something immoral (and of course anything illegal such as the commission of a crime, even voluntary eg a contract allowing someone to beat me to a pulp for S&M enjoyment), though the limits of these are always a fertile source of debate in jurisprudence tutorials.
It’s worth reiterating though that all such hypothetical cases are light years from this case, where a perfectly understandable and reasonable clause was inserted in a contract freely negotiated by sophisticated parties at arm’s length, both of whom had legal advice, and there’s no suggestion of duress or economic necessity colouring the agreement. Indeed Collins was happy with the agreement for a number of years before undertaking what non-lawyers would describe as selling out …
Actually in the course of writing my comment above, I’ve slightly changed my mind. I guess there is a free speech issue involved in the question: what kind of clauses in employment contracts are reasonable? Answering that would involve weighing companies’ commercial interests against the public interest in free speech. Or we could avoid having to answer such weighing questions by taking a libertarian stance and saying that whatever is voluntarily agreed to is binding. But then courts might have to uphold some odd clauses like the ones I mention.
James Wilson is right, it is not a free speech issue. The BBC was simply enforcing its employment agreement with him (or the ‘company that protects his economic interests’). There may be some cases where clauses in contracts are objectionable even if freely agreed to. For example, imagine the BBC’s contract with Collins said: ‘the employer must never publicly or privately criticise the BBC for the rest of his life’ or some other bizarre clause. Courts might reasonably hold that such clauses are invalid for the sake of free speech. But in the present case, the clause seems a reasonable one for ensuring the success of the character.
Consider also restraint-of-trade clauses in employment contracts. These say, for example, that if I quit my job I can’t set up in competition with my former employer for at least six months after. Reasonable enough since the worry is that employees might take clients with them. Imagine a different restraint-of-trade clause: if I quit, I’m not allowed to work in any capacity ever again. Those kinds of clauses are too much (though why shouldn’t even these be enforced if they were voluntarily agreed to?)
The only correction to Wilson that could be made is that free speech issues are not just about government censoring people. It can also be about corporations trying to silence people or even one person trying to silence someone else, like if someone threatens me if I express my political views publicly. But those cases are where there are no contracts present.
In the sense that it was about stopping someone (Collins) saying something (that he played the part of the Stig) it was about “speech” but that’s about it. Free speech as a concept in political philosophy is not concerned with the protection of intellectual property rights or freely agreed commercial confidentiality clauses, but rather the state stopping opinions with which it happens to disagree, or suppressing information which the public has a right to know.
That is the distinction between the Stig’s case and Spycatcher. The Stig was a character in a light hearted entertainment show (and although the BBC is a public entity in one sense, for all relevant purposes here it was in the same position as a private individual at law). Spycatcher on the other hand concerned a former employee of the state who had access to information of public interest – the public has a right to know what the UK government is up to, balanced against national security concerns, and how to balance those two factors is a classic free speech battle.
By contrast there isn’t a right to know the recipe for Coke or Pepsi or the design of an engine or any other form of commercial information. But, as with Spycatcher, if the information is already out there then a court isn’t going to waste its time with injunctions that can’t have any practical effect.
If Collins wanted to be free to talk about his professional life then he shouldn’t have applied to play the part of a character the whole point of which was that he was anonymous. As I said in the post, leaving aside the legal issues the BBC was morally in the right. They (or in particular Jeremy Clarkson and the producer Andy Wilman, who are responsible for the show in its present format) invented the character. Collins applied to play it, after the first person to do so (journeyman racing driver Perry McCarthy) was let go precisely because he had ‘outed’ himself in his autobiography! In accepting the part he agreed to keep his mouth shut. And indeed he managed to do so for a number of years, during which time the fame of the character increased considerably, mostly because of the fact of anonymity (and the resultant speculation as to his identity). Either Collins got bored with it, or the old saying that every man has his price got the better of him and he agreed to sell out. Not exactly a battle for anyone’s rights.