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Friday, 27 August 2010

BBC v The Stig

A short piece jointly written with a colleague, Marie-Therese Groarke, for Halsbury's Law Exchange.

Since its relaunch with a new format in 2002, Top Gear has become one of the BBC’s most successful programmes both domestically and internationally. Its three main presenters, Jeremy Clarkson, Richard Hammond and James May, have become rich and famous as a result, partly through promotions and other activities related to the programme. The fourth regular character of the programme is of course the anonymous “tame racing driver” known as “the Stig”, always introduced by Clarkson or one of the others with some absurd supposed facts, such as that "he only knows two facts about ducks, both of which are wrong." Much of the humour of the show concerns the comic mystery as to the Stig’s identity. The original Stig was clad wholly in black, but after revealing his true identity as the journeyman racing driver Perry McCarthy, he was replaced by another driver (or drivers) clad in white racing apparel. The BBC inserted confidentiality clauses in the driver’s contract and has done everything it can to protect, and play on, the Stig’s anonymity.

Now, however, according to recent press reports, the real Stig has an eye on the extra earnings of the others, and wishes to publish his memoirs, which will entail revealing his identity. The BBC claims that the planned memoirs breach the strict contractual confidentiality obligations.

One interesting point is whether such a confidentiality clause can be enforced if the Stig’s identity has already been revealed by others. As the Sunday Times appeared to unveil the Stig as Ben Collins, a former Formula Three driver and stuntman, it will be argued that the information is no longer confidential. Once information is in the public domain the courts will not grant an injunction to protect disclosure because the information is no longer confidential and an injunction would serve no useful purpose: Attorney General v Guardian Newspapers (No 2) [1988] 3 All ER 545.

The really interesting question is when does it become in the public domain? Is it in the public domain because the Sunday Times speculates that it was him, or would it be in the public domain only once the Stig (if it is Collins) confirms the Sunday Times’ story?

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