The Court of Appeal has confirmed a decision that confidential information was not misused by a large telecommunications organisation when it developed a television programme format with multiple similarities to one pitched to (and rejected by) it by individuals from the music industry a year previously.
In December we wrote this update about the High Court decision in Kerry Ingredients (UK) Limited v Bakkavor Group Limited, in which the court gave wide protection to confidential information by deeming information 'confidential' even where it could be derived independently, or by trial and error. In that case, the defendant had used the claimant's information as a shortcut to achieving a benefit for their business.
That case concerned confidential information in the food industry, where 'information' (ingredients' lists, recipe methods, storage instructions) is relatively easy to identify. Since then, the Court of Appeal has confirmed a decision that confidential information was not misused by a large telecommunications organisation when it developed a television programme format with multiple similarities to one pitched to (and rejected by) it by a couple of individuals from the music industry a year previously. Why the difference in approach?
The claimants both worked in the music industry, and pitched their television programme format to British Sky Broadcasting (BSkyB) in June 2009. The format was for a competitive musical programme where singer-songwriters performed to a panel of judges. The pitch was delivered using a deck of PowerPoint slides, a copy of which BSkyB retained. A key feature of the claimants' format was that the contestants' songs would be made available to download the day after the show. This gave the songs eligibility for the charts immediately.
BSkyB did not commission the programme, but a little over a year later began broadcasting a very similar programme which ran for a series and enjoyed success in the UK and abroad. Their programme also featured performance content being made available via download to the public, and the songs featured on the programme were also eligible for the charts.
The claimants brought a claim against BSkyB for misuse of confidential information – the information being the television programme format idea which was presented at the original pitch.
The relevant law
The law protecting confidential information comes from the decision in Coco v AN Clark, which provides that:
- Information must 'have the necessary quality of confidence' to be protectable – i.e. it must be confidential and not in the public domain;
- It must be disclosed in circumstances which impose a duty of confidence upon the person receiving the information; and
- There must be evidence of a breach of that confidence by the person who receives the information – to the detriment of the person who has provided it.
BSkyB were found not to have misused the claimants' confidential information.
The information was deemed confidential – a point that BSkyB had disputed. The details of the television format were set out clearly in the PowerPoint presentation, and the circumstances of a pitch meeting at BSkyB's offices strengthened the view that the information was imparted in a confidential context.
However, although there was considerable duplication between the individual elements of BSkyB's programme and the claimants' original format, sufficient differences existed that it did not look like a complete trace of the original idea. BSkyB was able to rely on evidence that showed how each of the duplicated elements had come to be included in their programme, and they were also able to explain how the programme had come to be developed in such a short time after they had heard the claimants' pitch. The case ultimately came down to the judge's impression of the factual evidence presented by each party.
The claimants appealed this decision, most significantly on the basis that the judge had approached the issue incorrectly by considering the elements of each programme format individually before forming a view of 'their effect in combination'. It was the 'big picture' that made BSkyB's programme appear as a duplication of the claimants' format, and that should have been the primary form of assessment. However, all bases of the appeal were dismissed. The judge was entitled to approach his assessment in the way he did, and there was no evidence that his assessment was illogical.
This case shows how the protection afforded to confidential information will differ across industries. The problem for television creators is that their most valuable confidential information is usually an idea, and it is hard to prove that someone else can't possibly have also had your idea.
However, this decision may help creators to protect themselves: the Court of Appeal upheld the approach of considering the individual components of a television format side by side before forming a view of 'their effect in combination'. This should lead creators not to be too specific in what they write down about their formats for an initial pitch. Doing so could inadvertently offer a competitor an easy way to develop a similar idea with a little difference to distinguish the two when viewed side by side. This also suits industry-practice, where television formats are expected to evolve considerably from the first pitch to commission.