The Court of Appeal has held there had been no misuse of confidential information in relation to a musical talent show where the evidence demonstrated independent creation.
There are three elements to be established in a claim for misuse of confidential information:
- The information must be confidential in nature, that is, not in the public domain.
- It must be disclosed in circumstances importing an obligation of confidence.
- There must be some unauthorised use by the person who received the information (Coco v A N Clark (Engineers) Ltd  FSR 425).
W had an idea for a TV talent show called "The Real Deal", which W pitched to the broadcaster, S, using a deck of PowerPoint slides. S decided not to commission the programme, but later that year put a new show into production called "Must Be The Music", which was directed by an individual who had made "The Real Deal" pitch with W.
The High Court dismissed W's action for misuse of confidential information (www.practicallaw.com/6-565-4609). It held that "Must Be The Music" had been created independently of "The Real Deal". W appealed and S cross-appealed.
The court dismissed W's appeal.
The court rejected W's arguments about a failure to look at the relevant aspects of "The Real Deal" in combination, rather than individually. The High Court had correctly started with an analysis of each of the allegedly confidential aspects of the show, and then looked at the best available combination of them in deciding both whether they had the requisite quality of confidence and for the purpose of deciding whether there had been copying.
The burden of proof in a claim for misuse of confidential information derived from the law relating to breach of copyright. Although the legal burden rested on W, the evidential burden might shift to S if W demonstrated sufficient similarities between its work and S's work, and that there was sufficient opportunity for S to copy its work, to create an inference that copying actually took place. S might then rebut that inference by evidence which proved independent derivation.
Here, S had discharged the burden of showing independent creation, but the possibility of subconscious copying remained, so that it was necessary to see whether S's positive case had been overturned by evidence of sufficient strength. S's positive case of independent creation had been proved to a standard well in excess of a mere balance of probabilities.
Having rejected W's appeal, it was unnecessary to consider S's cross-appeal. As the High Court had been entitled to find that all elements in S's show were independently created, it was unnecessary to deal with whether the alleged combination of copied features had the necessary quality of confidence.
This decision illustrates the uphill struggle in overturning a decision when the appeal is essentially about a finding of fact, here the finding of independent creation: that S had not used W's information in the production of its TV show.
Neither court found it necessary to decide whether those elements of W's show format that did not reach the threshold for protection under the law of confidence might still attract protection as a combination. The difficult issue of whether an unpublished combination of elements in a TV format can attract protection as confidential information remains unanswered.
Case: Wade and others v British Sky Broadcasting Ltd  EWCA Civ 1214.
First published in the January & February 2017 issue of PLC Magazine and reproduced with the kind permission of the publishers. Subscription enquiries 020 7202 1200.