Published on Halsbury's Law Exchange here.
Judgment has now been handed down in the case of BBC v Harper Collins Publishers Ltd and others  All ER (D) 08 (Oct). The case concerned an attempt by the BBC to prevent Mr Ben Collins from revealing publicly that he has played the part of ‘the Stig’, a character on the BBC’s highly successful television programme Top Gear. At the conclusion of the hearing the judge refused to grant the injunction, thus enabling publication and serialisation of Mr Collins’s autobiography.
As foreshadowed in the earlier piece on these pages, it is evident from the judgment that the reason that the BBC lost is that the information was already in the public domain, various newspapers having already identified Mr Collins in the role. Applying AG v Guardian Newspapers (No 2)  3 All ER 545, the fact that the information was no longer confidential was fatal to the BBC’s claim.
Being the application of existing authority, the case is not of any legal importance. It is worth responding, however, to misconceptions about the case which appeared on the Guardian’s Law Blog, written by Afua Hirsch, shortly after the hearing. Ms Hirsch first argued that the case was ‘one of lowest moments in the BBC’s record on press freedom’ and that the BBC applying for the injunction ‘undermines its role as a defender of free speech, a deeply unhelpful move at a time when libel and press freedom is under so much scrutiny and has finally caught the imagination of politicians who are generally hardwired to avoid such a complex and emotive issue’.
In fact the case had nothing whatsoever to do with free speech. Free speech concerns the right of the individual to say what he or she wishes without interference from the state on moral, religious or political grounds, or in other circumstances the state suppressing information which the public has or should have a right to know. In this case the BBC (which although a public body was acting as a private individual when contracting with Mr Collins’s service company and bringing the action) was only seeking to enforce the terms of a commercial bargain. It was no different from any other such commercial arrangement. Countless employees are bound by contract to keep sensitive information – be it fast food recipes, mechanical designs, or whatever. This case was no different. It certainly did not involve the state censoring anyone’s opinion or suppressing information of public importance.
As to the morality of the situation, it seems obvious that Mr Collins was in the wrong: he freely agreed with the BBC to keep the character’s identity a secret, then reneged on that agreement in the hope of selling his book. The chief reason he won the case was because the secret was already out, and the court was therefore not going to make an order which could not have any practical effect.
Ms Hirsch then called the exercise ‘an extravagant waste of licence-payers’ money’. But it was not disputed that Top Gear has been an extremely lucrative franchise for the BBC, sold and distributed in many countries around the world. Therefore, taking steps to preserve one of the features of the programme was not per se a waste of money, although it should be conceded that the chances of success seem to have been unlikely even without the benefit of hindsight, given the extent to which Mr Collins had already been named as the Stig by the media.
Ms Hirsch adds, without reference to evidence, that ‘there has been speculation that this legal battle is simply a proxy war for the real battle between the BBC and Murdoch’, before finishing with what constitutes an extraordinary remark from a qualified barrister, that injunctions are ‘a dirty weapon at the best of times’.
Certainly injunctions like any other legal remedy can be abused (though as shown the instant case is not an example of that), but injunctions are a central component of justice. Without them many legal rights would be rendered illusory, as unscrupulous defendants could remove assets and evidence from the jurisdiction long before trial.
Update: the UK Human Rights Blog has responded to this post here.