Tillery Valley Foods Ltd v Channel Four Television Corpn & Another

Reference: [2004] EWHC 1075 (Ch); The Times, 21 May 2004

Court: Chancery Division

Judge: Mann J

Date of judgment: 11 May 2004

Summary: Confidential Information - Defamation - Injunction - Secret Footage - Employee- Duty of Confidentiality - Breach of Contract

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Appearances: Adrienne Page QC - Leading Counsel (Defendant) 

Instructing Solicitors: Farrer & Co for the Defendants

Facts

Channel Four (“C4”) proposed to transmit secret footage recorded by an undercover reporter who had got a job working in the Claimant’s food manufacturing plant. The footage showed numerous examples of unhygienic practices. C4 put a number of the allegations to the Claimant for comment. The Claimant applied for an injunction to restrain the transmission of the programme until they had been provided with an adequate opportunity to review the undercover footage and comment on the allegations.

Issue

(1) Whether the information recorded in the secret filiming was arguably confidential;
(2) Whether, if it was arguably confidential, there was nevertheless a sufficient public interest in allowing it to be broadcast:
(3) Whether there was any basis on which the Claimant could demand to see the footage and exercise a right to reply;
(4) Whether the application for a injunction on the basis of breach of confidence was in fact an attempt to get round the ban on interim injunctions in defamation claims.

Held

Refusing the injunction: (1) the footage was not confidential. It was not sufficient simply to point to the breach of the employee’s contract to establish the necessary degree of confidence. The issue was whether the information was confidential and ABC v Lenah Game Meats showed that this type of information was not confidential. (2) The public interest clearly favoured transmission; (3) the law did not recognise the “right of reply” contended for by the Claimants; (4) the reality was this was a defamation claim dressed up as a breach of confidence in order to attempt to get round the rule in Bonnard v Perryman.

Comment

This is an important decision for its rejection of the suggestion that merely engaging in covert filming (even if that was in breach of a contractual provision) did not render the footage confidential. What a Claimant must show is that something contained in the footage is really confidential, rather than that the publication or revelation of the footage will be damaging or embarrassing. The Claimant’s attempt to navigate round the prohibition on prior-restraint in defamation proceedings failed as did its attempt directly to enforce the ITC code provisions on fairness.