Equity - Median and entertainment - BBC - Breach of confidence

BBC v (1) Harpercollins Publishers Ltd (2) Ben Collins (3) Collins Autosport Ltd: Ch D (Mr Justice Morgan): 4 October 2010

The applicant BBC sought an interim injunction preventing the first ­respondent publisher (H) from ­publishing an autobiography by the second respondent (C).

The BBC broadcasted a highly successful television programme which featured a particular character (S). An important characteristic of S was that the identity of the person playing the role was unknown to the public. C played the role of S from 2003 to 2010, in series 3 to 15. C was aware from the outset that it was important that S’s identity was concealed. His involvement was the subject of a series of contracts between the BBC and the third respondent company (X). A number of those contracts contained terms in relation to S’s identity not being revealed. There were a number of articles in the press suggesting that C was S and C had written his autobiography, to be published by H, which disclosed that fact. Prior to signing a contract for series 13, C requested confirmation of his understanding that the confidentiality only applied until a series had been broadcast. The BBC’s position was that the identity of S was to remain confidential at all times. C told the BBC about his autobiography. The BBC brought proceedings against C for breach of contract and breach of his duty not to disclose confidential information and sought an interim injunction preventing publication of his autobiography. The BBC contended that both C and X were parties to the contracts and, even if C was not subject to a direct contractual obligation, he was subject to an equitable duty of confidence.

Held: Section 12(3) of the Human Rights Act 1998 provided that an injunction to restrain publication should not be granted unless the court was satisfied that the applicant was likely to establish at trial that publication should not be allowed. The test to be applied was whether the applicant had satisfied the court that they would probably succeed at trial (see paragraphs 9-10 of the judgment), Cream Holdings Ltd v Banerjee [2004] UKHL 44, [2005] 1 AC 253 followed. C was not a party to the contracts between the BBC and X and there was no contractual obligation directly binding him in relation to disclosure of S’s identity (paragraph 20). However, it was clear that when C took on the role of S he understood that S was to be anonymous and that S’s identity was confidential to C and the BBC, and C did not really challenge the BBC’s contention that he was subject to a duty of confidence. The issue between the parties was regarding the length of period the identity of S was to remain confidential. Given the initial discussions regarding C’s involvement as S, the programme’s considerable commercial value in the secondary television market, the express terms of the contracts between the BBC and X and the communications between the BBC and C which preceded the signing of contracts for the later series, the argument that S’s identity was to remain confidential at all times rather than until a particular series had been broadcast, particularly to protect the archive value of the programme, was more likely to prevail at trial. That duty of confidentiality would continue at least until the information ceased to have the character of confidential information (paragraphs 48-50). The issue therefore was whether C’s identity as S had ceased to be confidential information and, if so, the legal consequences of that fact (paragraph 51). The relevant test was whether the identity of S was so generally accessible as to no longer be regarded as confidential (paragraph 52), Attorney General v Observer Ltd [1990] 1 AC 109 HL followed. The question as to whether information had entered the public domain was a matter of fact and degree. There would be cases where, even though the information had been published, the nature or availability of the publication might lead a court to conclude that the information was not so generally accessible as to have lost its confidential character (paragraph 53). However, the press coverage had gone well beyond speculation as to the identity of S. The statements in the press that C was S would be understood by the public to be statements of fact, and the number of newspapers which had stated that fact was such that it was generally accessible. For all practical purposes, anyone who would have had any interest in knowing the identity of S knew it. It was no longer confidential information and it was likely that any court would reach that conclusion at trial (paragraph 56). With regard to the equitable duty of confidence, it was not appropriate to hold that the instant case was one where there was a residual or limited confidentiality in the information which should be protected by the grant of an injunction (paragraphs 58-61), AG v Observer followed, Vestergaard Frandsen A/S v BestNet Europe Ltd [2009] EWHC 1456 (Ch), [2010] FSR 2 considered and Schering Chemicals Ltd v Falkman Ltd [1982] QB 1 CA (Civ Div) doubted.

Application refused.

Richard Spearman QC, Jonathan Barnes (instructed by In-house solicitor) for the applicant; Hugh Tomlinson QC, Laura Prince (instructed by Davenport Lyons for the first respondent; Clarke Willmott for the second and third respondents) for the first, second and third respondents.