British Broadcasting Corporation v HarperCollins Publishers Ltd, Ben Collins and Collins Autosport Limited [2010] EWHC 2424 (Ch)

01 October 2010

Gina Brueton

In a much publicised case involving the secret identity of Top Gear’s “The Stig”, the High Court refused to grant a preliminary injunction to restrain the publication of Mr Collins’s autobiography revealing that he was The Stig. The Court held that although Mr Collins was subject to a duty of confidentiality as regards his identity as The Stig, that fact had already entered the public domain as a result of a number of press articles speculating on the identity of The Stig and thus the information was no longer confidential. Accordingly, Mr Collins’ duty to keep the information confidential had ceased so no injunction would be granted. Nor would an injunction be granted to punish Mr Collins for his past misuse of the information when it was still confidential as this would confer no benefit on the BBC. It does however remain open to the BBC to seek damages or an account of profits from Mr Collins.

The BBC has thus been a victim of its own success: the device of keeping secret the identity of The Stig served to arouse such media interest that the information lost its confidential nature, thus tying the hands of the Court in granting an injunction.

Background

Top Gear is a popular and humorous BBC television programme about cars. The programme contains a test drive segment featuring a character called The Stig who appears in a white racing drive suit and white helmet with a dark visor, which remains closed. It is a key characteristic of The Stig that he is anonymous, does not speak and that no clue as to his identity is given. There is speculation in the programme as to who, or what The Stig might be, which is left unresolved on the show. Prior to Mr Collins’ appointment as The Stig in 2003, the role was played by Mr Peter McCarthy. However, despite having signed a confidentiality agreement in relation to his identity as The Stig, Mr McCarthy decided to disclose this fact in an autobiography, which led to him being dismissed as The Stig. When Mr Collins took over from Mr McCarthy, he was aware of the circumstances surrounding Mr McCarthy’s dismissal, as well as the importance of keeping secret the identity of The Stig. On his own initiative, Mr Collins took to arriving on set wearing a balaclava in order to keep his identity concealed. 

By 2009 however Mr Collins had also decided to write an autobiography revealing that he was The Stig. Mr Collins approached HarperCollins with a view to publication and preparations were made for the book to be released in time for the Christmas 2010 market. In July 2010, Mr Collins told the Top Gear producer about his autobiography and stated that he was thinking of leaving the programme. This led to discussions between the BBC, Mr Collins and HarperCollins during which the BBC became aware that the book was to be called “The Man in the White Suit” and was due to be published in September 2010. Accordingly, in August 2010, the BBC launched proceedings contending that publication of the autobiography would involve a breach of the duties owed by Mr Collins to the BBC under contract and in equity. The BBC sought an interim injunction to restrain the disclosure of the identity of The Stig.

 

The test for an interim injunction where freedom of expression is in issue

The parties agreed that Section 12 of the Human Rights Act 1998 regarding freedom of expression applied, and thus following Cream Holdings Ltd and Others v Banerjee and Another [2004] UKHL 44 the test that the Court must apply in deciding whether to grant an interim injunction was not that set out in American Cyanamid but rather whether the applicant would probably (‘more likely than not’) succeed at trial.

Contract

Unlike Mr McCarthy who had entered into a confidentiality agreement with the BBC, Mr Collins’ involvement in Top Gear was the subject of a series of contracts made between his service company, Ben Collins Autosport Limited, and the BBC, some of which contained an express term in relation to the identity of The Stig, and some of which were silent on the point. Where there was a term to this effect, it was drafted in the following terms: “you will not reveal your identity”. On this basis, the BBC submitted that Mr Collins was also a party to the contracts because the parties would never have intended that the service company would not reveal its identity. Mr Justice Morgan disagreed, holding that it was not an absurd suggestion since the revelation by the service company of its identity would indirectly have revealed the identity of Mr Collins. Alternatively, the Judge held that the contract was to be interpreted such that the service company would not reveal its identity or the identity of Mr Collins. On either construction, Mr Collins was not a party to the contracts and was not therefore subject to any contractual obligation to keep the identity of The Stig confidential.

The service company on the other hand was subject to an obligation to keep confidential all matters concerning the contribution of the service company and Mr Collins in Top Gear. However, the Court held that this obligation would not be breached by a statement as to Mr Collins’ identity as The Stig because that fact was no longer confidential due to a number of articles in the press speculating on the identity of The Stig, including an exposé by The Sunday Times (subsequent to the BBC’s application for an injunction) which purported to definitively identify Mr Collins as The Stig. An injunction against the service company was therefore refused on the basis that it would not confer anything of benefit on the BBC since the identity of The Stig was now known.

Equitable duty of confidence

The parties agreed that an equitable duty of confidence would arise where confidential information came to the knowledge of a person in circumstances where he had notice, or had agreed that the information was confidential with the effect that it would be unjust for him to disclose it to others. The Court held that Mr Collins had understood that The Stig was meant to be anonymous and that the identity of The Stig was confidential to himself and the BBC and so he was bound by an equitable duty to keep the identity of The Stig confidential.

The real question for the Court however related to how long Mr Collins ought to remain subject to this duty, the BBC having asserted that the identity of The Stig was to remain confidential at all times, in particular to protect the value of the Top Gear archive, and Mr Collins having asserted that the identity of The Stig was only to remain confidential until the particular series in which he played The Stig was broadcast, it being too onerous for him to be bound by a duty of confidentiality in perpetuity. The Court preferred the BBC’s submissions subject to the caveat that although the duty of confidentiality could theoretically continue in perpetuity, it would only continue in fact until such time as the information ceased to have the character of confidential information. Information could cease to be confidential by, for example, entering the public domain, i.e. by becoming so generally accessible that it could no longer be regarded as confidential. Mr Justice Morgan held that the press coverage went well beyond speculation as to the identity of The Stig and would have been understood by the public as statements of fact. The number of different newspapers which had stated the fact was such that it was now generally accessible. Accordingly, the identity of The Stig was no longer confidential. It followed that the Court would not grant an injunction to prevent Mr Collins from revealing that he was The Stig.

The Judge also refused to grant an injunction to prevent Mr Collins from disclosing the information on the basis that he ought to be prohibited from benefitting from his past misuse of confidential information. The Judge held that it was not a proper use of the Court’s powers to grant an injunction merely to punish Mr Collins for his previous unlawful action where the injunction would not also protect the BBC from unlawful harm.

The BBC’s claim for an injunction against HarperCollins and the service company failed for the same reasons.