For the half-year to 30 June 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Alberto Bellan, Darren Meale and Nadia Zegze.

Two of our regular Kats are currently on blogging sabbaticals. They are David Brophy and Catherine Lee.

Monday, 4 October 2010

Why BBC stalled in race with The Stig

The BBC's next great idea, "Junior Top Gear"
 -- but will little Tommy overtake The Stig in popularity?
Readers with a mild interest in the parameters of commercial privacy/publicity, or with an obsession with the BBC's "Top Gear" television series, may recall the IPKat's posts here and here on the unsuccessful efforts of the British Broadcasting Corporation to secure an interim injunction to prevent Ben Collins ,the human being whose persona as "The Stig" was the subject of much attention and speculation, from revealing in his biography who he really was. The IPKat guessed what had happened, and his guess was confirmed at the time -- but now the full judgment of Mr Justice Morgan (Chancery Division, England and Wales) is available for all to read and (unless they do the BBC's contract work) enjoy. In short, there was a contract between the BBC and Collins' service company, but no contract and no obligation of confidentiality owed by Collins himself to the BBC.  As the judge put it,
"My conclusion is that Mr Collins was not a party to the relevant contracts. Although Mr Collins signed the contracts, he did so on behalf of the service company which was expressed to be the relevant contracting party, for which he signed. He did not, by his signature, become a further party to the contracts. The BBC contends that Mr Collins must have been a party to, at any rate, some of the earlier contracts because those contracts contained an obligation on the other contracting party that "you will not reveal your identity". It is said that it cannot have been intended that the service company would not reveal its identity; it must have been intended that Mr Collins would not reveal his identity. Therefore, it is argued, the contract must be directly binding on Mr Collins and it should be held that Mr Collins made himself a party to the contract for the purpose of taking on this obligation, but not, apparently, for any other purpose. I agree that the language of the obligation referring to "you" and "your" is not ideal given that the other contracting party is prima facie the service company. The real reason for that is that the parties did not think through the consequences of the fact that the contracting party was the service company rather than the individual performer. There are a number of ways for a court to react to this state of affairs. One is to take the contract literally. That produces the result that the service company contracted not to reveal its identity. That is not an absurd suggestion; if the service company had revealed its identity, that would indirectly reveal the identity of Mr Collins. Another way to read the contract is to hold that the service company contracted not to reveal its identity or the identity of Mr Collins. In my judgment, it is appropriate to hold that the contract is to be read in one or other of those ways and it is not appropriate to hold that Mr Collins himself entered into the contract for the sole purpose of entering into the obligation in question ...".
What about any duty of confidentiality which, apart from the contract, Collins might owe to the BBC? Yes, the judge said, such a duty of confidence existed.  However, that did not avail the BBC since, on the evidence the cat (metaphorically speaking) was out of the bag.
" I will ask whether the identity of The Stig is so generally accessible so that, in all the circumstances, it can no longer be regarded as confidential. In my judgment, the press coverage, in particular the press coverage in August 2010 [nb the BBC's claim was lodged on 17 August and was heard on 31 August/1 September], goes well beyond speculation as to the identity of The Stig. The statements in the press that Mr Collins was The Stig would be understood by the public as statements of fact. The number of different newspapers which have stated that fact is such that the fact is now generally accessible. 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. I conclude that at the latest by 29th August 2010, the date of the last of the thirteen publications (between 19th and 29th August 2010) to which I referred above, the fact that Mr Collins was The Stig was so generally accessible that that information had lost its confidential character. At the lowest, I think it is likely that the court at any trial of this action would reach that conclusion".
All things considered, this was not good news for anyone seeking an interim injunction:
"Such an injunction would not protect the claimant from harm caused by the unlawful action of a defendant. Although such an injunction would deprive the defendant of a benefit, it is not a proper use of the court's power to grant an injunction merely to punish a defendant for his previous unlawful action, where the injunction does not protect the claimant against further harm, unlawfully caused. The court may award a financial remedy to a claimant in such a case, but that is not the remedy sought by the BBC on this application.".
This must be right, as far as it goes, says the IPKat, but it does raise questions as to the bases under which the BBC might seek damages or equitable remuneration at some later stage -- if they have not already contemplated doing so.

What's The Stig doing now? Click here, here and here
A speedy Morgan here

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