A recent Chancery Division case has held that the identity of popular television character “The Stig” was too easy to find and as such refused to grant an interim injunction to prevent the publication of an autobiography by Ben Collins entitled “The Man in the White Suit” which threatened to reveal that Ben Collins was, in fact, The Stig.
The Top Gear format
From 2002, popular BBC television programme Top Gear has operated a format in which a character called The Stig appears on the show. The Stig is dressed in a racing driver suit and helmet with a black visor that reveals no distinguishing features. The result is that viewers should never know the identity of The Stig. The Stig was originally played by Peter McCarthy and from 2002, he wore a black racing driver suit and black helmet, however, after the first two series, Mr McCarthy disclosed his identity in an autobiography and was subsequently dismissed from the show. As a result, the character of The Stig was revamped and Ben Collins arrived as “The White Stig”.
In July 2010, during filming for the fifteenth series of the programme, Ben Collins approached the producer of Top Gear and informed him that he had been asked to write an autobiography and was thinking of leaving the show. This led to discussions between Ben Collins, his agent and the BBC during which it was revealed that the autobiography was to be published in September 2010, just in time for Christmas.
As a result, the BBC raised an action against Ben Collins, Collins Autosport Ltd – the service company of Ben Collins – and the publisher of the autobiography, HarperCollins Ltd. It was claimed that:
- a contractual duty of confidentiality was owed to the BBC as a result of the terms of Ben Collin’s service contract; or
- an equitable duty of confidentiality was owed to the BBC.
Contractual duty of confidentiality
The service contract entered into by Ben Collins contained confidentially clauses prohibiting disclosure of his role as The Stig, however the arrangements were such that Ben Collins entered into the contract on behalf of Collins Autosport Ltd and not as an individual. It was therefore held that he was not personally subject to the contractual duty of confidentiality, however Collins Autosport Ltd was.
Equitable duty of confidentiality
The judge in the case did however hold that an equitable duty of confidentiality was owed to the BBC. Given the circumstances under which Ben Collins obtained the role, he was fully aware that his role as The Stig was to be anonymous and was confidential to the BBC and himself. Further, Collins Autosport Ltd and HarperCollins Ltd had full knowledge that the identity of The Stig was confidential.
The issue to be considered in the case was whether the information had stopped being confidential due to news reports linking Ben Collins to The Stig. Only information which is indeed confidential will be covered by the duty of confidentiality. In each case, it is a question of fact and degree as to whether information is in the public domain and generally accessible therefore losing its confidential status.
It was held in this instance that the press coverage had gone beyond speculation as to the identity of The Stig and was so widely available that anyone with an interest in knowing the identity of The Stig would already know it. Therefore, the action for an interim injunction against Ben Collins, Collins Autosport Ltd and HarperCollins Ltd failed, as there was no benefit to be gained from granting an interim injunction as the damage was already done. The correct remedy being in damages.
Manoeuvring through the minefield
From the case it is clear that the area of confidentiality and keeping trade secrets is something of a minefield. In all cases, it is essential that legal advice is sought in order to ensure that confidentiality clauses are drafted tightly enough to cover all parties and possible eventualities. It is also important that legal advisors are engaged at as early stage as possible in order to ensure that information is not leaked into the public domain prior to an interim injunction being sought.