Confidentiality agreements between employers and employees are
far from unusual. Over the years, a variety of industries including
the media, legal and financial sectors and the NHS have been forced
to introduce elements of confidentiality into their employment
contracts, either to comply with data protection laws or to protect
their valuable trade secrets and confidential information.
One of the most high profile cases concerning confidentiality
agreements to reach the public domain is the recent 'unmasking' of
racing driver Ben Collins as The Stig from the BBC TV programme
'Top Gear', following a lengthy attempt by the BBC to keep his
identity under wraps.
When it emerged that Collins planned to disclose his identity in
his autobiography, the BBC sought an injunction to prevent
HarperCollins from publishing the book, on the basis that such
publication would be a breach of the confidentiality agreement that
Ben Collins had signed.
The BBC argued that knowing the identity of The Stig would harm
viewers' enjoyment of the programme. Collins argued that he has the
same right to write and publish his autobiography as other TV stars
do despite having signed a confidentiality agreement.
The High Court refused to grant the BBC an injunction blocking
the publication of the former Top Gear stars autobiography. Reasons
for the decision are set to be given in a private judgement to
follow.
In light of the Court's decision in favour of Ben Collins, some
employers may wonder whether confidentiality agreements are worth
the expense and effort involved.
Employers will often need assistance from lawyers when drafting
and enforcing confidentiality agreements, which may appear to be an
unnecessary cost if there is a likelihood that the employee will be
allowed to breach it in any event.
The law relating to confidential information is a complicated
and, in many cases, uncertain area.
Even without a written confidentiality agreement, each contract
of employment contains an implied duty that the employee will act
with fidelity and good faith towards his employer. This would
include respecting the confidentiality of the employer's commercial
and business information. This duty is implied into all employment
relationships, whether or not this is reflected in writing and will
bind the employee for the duration of their employment.
The courts have identified a number of different classes of
information that an employer may want to keep confidential, ranging
from trade secrets, where it is more likely that the court will
consider it worthy of protection, to information which is already
in the public domain at the other, which is unlikely to be
considered worth protecting. The question of whether information is
capable of protection becomes less clear cut where it falls
somewhere between a trade secret and public information.
The courts have developed this approach to the protection of
different types of information because they are required to balance
the interests of the employer with those of the employee and arrive
at a decision which causes the least damage overall.
In the Collins case, the Court may have decided that the
potential of diminished audience enjoyment (as a result of knowing
the identity of The Stig) would have less of a detrimental impact
than the damage to Collins caused by not being able to publish his
autobiography. The fact that the identity of The Stig has been an
open secret for some time may also have had a bearing on the
Court's decision as this would diminish the detrimental impact on
the BBC resulting from Collins' disclosure.
Whilst there are instances where a court will find in favour of
an employee and allow a disclosure, a prudent employer should
ensure that confidential information is sufficiently protected.
This will involve identifying what information they consider to be
'confidential' and creating an express duty of confidentiality,
which may bind the employee even after the employment relationship
has ended. This will provide evidence of the parties' intention to
keep the information confidential and alert the employee at an
early stage to their obligations.
An employer considering using confidentiality agreements to
protect its confidential information should not be deterred by the
decision in the Collins case. They remain a legitimate way to
protect a business' interests provided that the employer
acknowledges that no matter how well drafted, some types of
information will not be capable of protection.
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