When seeking an injunction based on the law of confidence, a claimant must establish that information is confidential or that there is no public interest right requiring disclosure of the information. Tillery Valley Foods recently failed on the first count to prevent broadcast of a Channel Four investigatory television programme.
Tillery produces and distributes frozen meals to hospitals and other public sector markets. Channel Four commissioned a production company to make a programme on the production practices at one of Tillery’s factories. A journalist, posing as a factory employee, covertly filmed 60-65 hours of footage at the factory and took samples. The programme alleged that the practices and events at the factory were not consistent with proper food hygiene.
Tillery applied for an emergency order restraining broadcast until it had been given an “informed” right of reply on the basis of access to footage, materials removed from the factory, and results derived from the materials. Tillery argued the covert filming breached duties of trust and confidence and that the film amounted to confidential information.
It was acknowledged the allegations were in the public interest, but that there should be a balancing exercise in deciding whether to grant relief to take account of Tillery’s right to reply.
In his judgment, Mr Justice Mann held that it was not self evident that the film inevitably was confidential information.
He held that the confidentiality clause in the employee’s contract would not be relevant in this case because a bar on disclosure of business practices did not depend on the information being confidential – it covered all information. In any event, information could not become confidential merely because of a contractual provision.
The judge went on to say that “Confidentiality in information will not be protected if public interest requires disclosure, whether to the media or others.”
Notwithstanding this Tillery argued that the confidentiality of the information affected the conscience of Channel Four such that the public interest should not allow broadcast unless there was a right of reply. The Judge rejected this notion and held that a right of reply would only fulfil the individual company’s interest and not the public’s.
Neither was the judge impressed by Tillery’s reliance on the OFCOM broadcasting code over the opportunity to reply stating that this was a code and not the law.
However, it is clear from other cases that the types of information which the court would regard as confidential include trade secrets, board meetings and sensitive financial data. Unlawful activities, however, could not in the public interest be protected by confidentiality under the OFCOM and Editors’ codes. Tillery v Channel Four is a good decision for journalists but it is too soon to judge its impact as it sits somewhat uneasily with the Dixon’s Court of Appeal decision, where covert filming in a shop was deemed to be an unwarranted breach of privacy.
Christopher Hunt is a solicitor in Lovells Technology, Media and Telecommunications Department Christopher.firstname.lastname@example.org