Thursday, August 19, 2010

Top Gear, Privacy and Identity

.. not a set of three things I ever expected to string together!!

Fascinating story of the week is that Top Gear's famous pet racing driver, The Stig ("some say he is the bastard child of Sherlock Holmes and Thierry Henri") wants to break his contractual and confidential obligations of silence as to his true identity imposed by his (presumably lucrative) BBC contract, so that he can reveal his name and make big $$$ out of his autobiography, in the style of his fellow presenters Clarkson et al, all of whom have reportedly made millions out of parlaying their popularity from the show.

It's a cracker this, in a week when the headlines are already full of a half hint that the Con_Dem government are thinking of having a bash at Eady J's judge-made law on privacy, breach of confidence and press freedom. The general tone of the hints in press has been that the balance has shifted too far in favour of protecting celebrity privacy, and too far from allowing the press to make lots of money out of kiss and tell tittle tattle, sorry," fulfil their public investigative duties".

So we already have an extensive debate about how far celebrities should be able to preserve their privacy even where they live their lives to some extent in public; but till now we've rarely had a debate about whether the "right to respect for private life" (Art 8 of the ECHR, which founds the recent line of English cases on privacy and confidence) also covers the right to disclose as well as hide your secrets.

From one perspective, the right to assert your "nymic" identity seems clearly like something that should be an intrinsic part of private life. In more modern instruments than the ECHR, such as the UN Convention on the Rights of the Child, a right to a name and an identity is explicit. In the ECHR, case law has extended the right to family life to something very similar, with numerous cases on the rigt to a name, to a state affiliation qand to an immigration or domicile status. These cases are complex and go both ways but the underlying notion that private life includes identity is one which most scholars would I think acknowledge.

But another way to look at it - and one I am sure the BBC lawyers are quite keen on - is that this was a simple commercial transaction where the Stig was paid for silence. Non disclosure agreements (contracts) or NDAs are of course ubiquitous. As with the general domain of privacy and personal data online, the question then becomes the more controversial one of how far should you be able to sign away your basic rights by contract. Adopting the language of restrictive covenants, it would be surely be unreasonable if The Stig was not allowed to use his own name in any walk of life, or with any employer. But is it reasonable that be be bound indefinitely by his consent even by the BBC? The question also arises of what remedy would be reasonable here if the BBC were say to seek an injunction to prevent any name-attached autobiography of The Stig being published. In libel law, , the common aphorism is that common law courts prefer not to grant allow prior restraint of speech on allegations of defamation, but to impose damages subsequent to publication if damage to reputation then ensued: "publish and be damned". In pure contract or confidence actions, such a bright line does not pertain. Should The Stig have the right to assert his name and pay the BBC if they suffer loss as a result? Or should he be stoppable by injunction as is possible in the ordinary law of breach of contract?

I'd love to see this go to court but I strongly suspect it'll settle .

1 comment:

omnicity said...

I for one, would love to see an update from you on the outcome of this case - the media reports were too busy telling me who he was, (which I was pretty sure I already knew) so did not actually explain how the verdict was arrived at.