Undercover filming – employee – trespass – copyright – equitable ownership – breach of confidence – interim injunction – freedom of expression – balance of convenience – delay – discretion
P ran a large number of funeral homes in the UK. A was a reporter with D2 who secured a job with P, and made undercover film recordings. D2 used the information and film so obtained to prepare a documentary which D1 proposed to broadcast, accusing P of various malpractices. P initially complained of prospective libel and breach of confidence. P then sought an injunction, contending that A had obtained access to its funeral home by deception, that A and/or D1 and/or D2 therefore held the copyright of the recordings on trust for P; and that the information obtained by A was confidential.
Should broadcast of the documentary be restrained pending trial on the grounds of trespass, breach of copyright or breach of confidence?
(1) The starting point was the fundamental right to freedom of expression. P had to bring its case within one of the established exceptions and show that prior restraint was warranted. (2) The application was prompted by concern for the plaintiffs’ reputation. If P had sued in libel no injunction would have been granted. The same rule should apply despite P’s reliance on other causes of action. (3) P had no arguable cause of action in copyright, trespass or confidentiality. (4) There was, moreover, a substantial public interest in the disclosures proposed. (5) If the matter had been in doubt the court would have refused relief on discretionary grounds: the media should not be silenced on such a matter by a claim with limited or uncertain prospects; the matter was topical and delay would be prejudicial to Ds; P had unjustifiably delayed its application.
A striking feature of the case was that P (in order to limit distress to relatives of the deceased) tried to stop broadcast of the covert film, whilst accepting that the events shown could be described in words. The judge saw no real distinction, leaving nothing to which confidentiality could be attached. The copyright claim failed as a result, as it depended on a claim that A was in breach of his fiduciary duty as P’s employee, by using P’s confidential information to make the film. Later authorities have tended to regard information about daily events in factories, offices and other workplaces as lacking the quality of confidentiality in any event. See for instance the High Court of Australia’s decision in ABC v Lenah Game Meats and Tillery Valley Foods v Channel Four.
