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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 102
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A203/07
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OPINION OF LORD
BRACADALE
in the cause
RESPONSE HANDLING
LIMITED
Pursuers;
against
BRITISH BROADCASTING
CORPORATION
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: The Dean of Faculty; Balfour & Manson
Defenders: Clancy Q.C., Hamilton; Burness LLP
3 April 2007
Introduction
[1] The
pursuers operate call centres in Glasgow
and Clydebank.
They employ a large number of people and deal with around 20 million
calls per year. Their customers include
banks, insurance companies and telecommunication companies. The pursuers are given access to the
operating systems of these customers and have access to extensive information
about the financial affairs of the customers of those institutions.
[2] In
January 2007 Miss Sandeep Gill, who was an undercover reporter engaged by the
defenders ("the BBC"), applied for a job with the pursuers. She was successful in her application and
after completing three weeks of induction training she commenced her employment
on 19 February 2007. She signed a contract with the pursuers which
included a confidentiality clause. She
agreed not to disclose any trade secrets or other information of a confidential
nature in respect of which the pursuers owed an obligation of confidence to any
third party. She agreed not to remove
documents etc containing any confidential information from the pursuers' premises
without authorisation and she agreed not to communicate in any way with a
member or employee of any media organisation regarding the business of the
pursuers. In the event she used a
concealed camera to record video footage within the pursuers' premises. She recorded on paper details of bank
accounts of customers of the institution which she was servicing and took these
away with her. She gave these, and
information with respect to the failure of the pursuers to take up her
references, to a BBC presenter. The BBC
intend to broadcast some of this material in a Frontline Scotland programme on 4 April 2007.
The
Hearing
[3] The
case called before me on a motion for interim interdict. It first came before me on Thursday 30 March 2007 when the pursuers
were represented by Mr Keen QC and the BBC by Mr Hanretty QC. The summons had been drafted on the basis of
the original footage which had been shown to the pursuers. I was advised that the final version of the
programme would be ready on Monday 2 April and I would have an opportunity of
seeing it then. I indicated that I would
view the video on that date and give an opportunity for further submissions in
relation to the completed version on Tuesday 3 April. As both counsel would be unavailable on Monday
they were content at that stage that I should simply view the video myself and
make my decision. The video was indeed
made available and I viewed it on Monday 2 April. I was also advised that parties did now wish
to make further submissions based on the final version of the programme and in
the light of that I postponed the making of the decision. On Tuesday 3 April the pursuers were
represented by the Dean of Faculty and the BBC by Mr Clancy QC.
[4] In
the course of the proceedings on Tuesday I allowed an amendment to the
conclusion of the summons. As drafted the
pursuers concluded for interdict against the defenders from broadcasting
footage filmed by Miss Gill containing confidential information pertaining to
the pursuers. In particular, the pursuers
sought to prevent disclosure of their employment protocol; the pursuers'
operating procedures or working practices; the type of information held by the
pursuers in respect of their clients in general and in respect of particular
clients; how such information is obtained and used by the pursuers' staff; the
manner in which the pursuers operate their business and the pursuers' training
procedures. The amendment added a
reference to footage disclosing the identity of the pursuers. On the morning of 3 April 2007 I refused the motion for interim
interdict. The BBC undertook not to
broadcast before the end of 23 April
2007 in order to allow the pursuers an opportunity to consider
whether to reclaim.
The
Programme
[5] The
programme, which is entitled "The Billion Pound Bank Robbery", investigates
bank account and credit card fraud. Such
fraud is now clearly being carried out on a large scale and has a significant
impact on the national economy. The
programme explains that in order to carry out this type of fraud criminals
require to obtain details about individuals including details of their bank
accounts and credit card accounts. One
of the ways in which such details can be obtained is to get access to the
extensive computer records of call centres where the necessary information is
stored. The programme suggests that
there are various methods by which this might be achieved. In addition to attempting to trick a call
centre employee to provide information over the telephone, or suborning an
employee to obtain information, a criminal could obtain a job in a call centre
and get access to the information. In
order to test for lapses in the security systems in call centres the BBC sent
in Miss Gill undercover to the pursuers' call centre. The pursuers' call centre was chosen because
there had been an alleged breach of security, of a different nature, in the
premises in the course of the previous year.
[6] The
programme informs the viewer that Miss Gill successfully applied for a job with
the pursuers. Prior to commencing work
she underwent a three week training course.
The training course is described in positive terms. In particular, a number of rules laid down by
the pursuers were identified. There was
a ban on the use of mobile phones, no pens and paper were to be used and there
was a strict policy of employee vetting.
The programme then goes on to test the adherence to these policies in
practice. The strict ban on mobile phones
was adhered to. However, those working in the section of the work to which Miss
Gill was allocated, servicing a particular national insurance company, were
supplied with notepads and pens for calls in connection with that company.
[7] Miss
Gill wrote down the details of bank accounts of five people to whom she spoke
on the telephone. Using a secret camera
she filmed herself doing this. She then
retained the pieces of paper on which she had written the information and took them
from the workplace. She handed the
pieces of paper to the presenter of the programme. The identity of the persons whose details
were recorded, and the details themselves, were not disclosed. The programme asserted that Miss Gill's
actions highlighted the ease with which a criminal could take advantage of
lapses of security to obtain information.
[8] Miss
Gill also explained to the presenter that although, when she applied for the
job, she had given the names of two referees, the references had never been
taken up. The programme pointed to this
as a failure properly to vet an employee prior to that employee starting work.
[9] In
article 6 of condescendence the pursuers aver that the footage discloses a
substantial amount of confidential information belonging to the pursuers. It is averred that it discloses a number of
the pursuers' standard employment protocols, including the use of references,
and the pursuers' policies on use of mobile telephones and on seeking to ensure
paper control and a paper-free environment in the workplaces. It discloses the working practices of the
pursuers, the type of information held by the pursuers and how it can be
obtained by their employees. It shows
the manner in which the pursuers operate their business and the internal layout
and contents of their workplaces. It
shows their training procedures. They go
on to aver that one of the pursuers' clients is a leading insurance company
whose computer system allows, as an exception to the pursuers' policy, notes to
be taken in relation to customers of the client on paper. A number of other averments are made to the
contents of the footage but my impression is that editing of the final version
of the programme has resulted in the excision of certain items which earlier
gave rise to complaint.
The
Human Rights Act 1998 section 12
[10] Parties were agreed that the nature of the motion engaged section
12 of the Human Rights Act 1998 ("the 1998 Act") which, so far as material,
provides:
"12(1) This section applies if a
court is considering whether to grant any relief which, if granted, might
affect the exercise of the Convention right to freedom of expression.
(3)
No such relief is to be granted so as to restrain
publication before trial unless the court is satisfied that the applicant is
likely to establish that publication should not be allowed.
(4)
The court must have particular regard to the importance
of the Convention right to freedom of expression and, where the proceedings
relate to material which the respondent claims, or which appears to the court,
to be journalistic, literary or artistic material (or to conduct connected with
such material), to -
(a)
the extent to which -
(ii) it is, or would be, in
the public interest for the material to be published;
(b)
any relevant privacy code."
Authoritative guidance on the
meaning and application of section 12(3) is to be found in the decision of the
House of Lords in Cream Holdings Limited v
Banerjee [2005] 1 AC 253. In that case Lord Nicholls of Birkenhead
considered the meaning of the word "likely" in section 12(3). In paragraph 22 Lord Nicholls summarised
the position as follows:
"Rather, on its
proper construction, the effect of section 12(3) is that the court is not to
make an interim restraint order
unless satisfied the applicant's prospects of success at the trial are
sufficiently favourable to justify such an order being made in the particular
circumstances of the case. As to what
degree of likelihood makes the prospect of success 'sufficiently favourable',
the general approach should be that courts will be exceedingly slow to make interim restraint orders where the
applicant has not satisfied the court he will probably ('more likely than not')
succeed at the trial. In general, that
should be the threshold an applicant must cross before the court embarks on
exercising its discretion, duly taking into account the relevant jurisprudence
on article 10 and any countervailing Convention rights. But there will be cases where it is necessary
for a court to depart from this general approach and a lesser degree of
likelihood will suffice as a prerequisite.
Circumstances where this may be so include those mentioned above: where
the potential adverse consequences of disclosure are particularly grave or
where a short-lived injunction is needed to enable the court to hear and give
proper consideration to an application for interim
relief pending a trial or any relevant appeal."
This test was applied in Scotland
by Temporary Judge M G Thompson QC in X v
British Broadcasting Corporation 2005
SLT 796. I gratefully adopt his approach.
I propose to review the issues which
arise in the case and consider whether the pursuers are more likely than not to
succeed at proof or, whether, failing that, there are circumstances here in
which it would be appropriate to apply the lesser standard. If the pursuers pass the section 12(3) test
it will be necessary to decide whether I should exercise my discretion to grant
interim interdict. I begin by
considering freedom of expression and the public interest in the material being
broadcast.
Freedom
of Expression: Article 10
[11] The BBC rely on their right
to freedom of expression under Article 10 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms ("the Convention"). Article 10 provides:
"1. Everyone has the right to
freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information and
ideas without interference by public authority and regardless of
frontiers. This article shall not
prevent States from requiring the licensing of broadcasting, television or
cinema enterprises.
2. The exercise of these
freedoms, since it carries with it duties and responsibilities may be subject
to such formalities, conditions, restrictions or penalties as are prescribed by
law and are necessary in democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of
the judiciary."
[12] Freedom of expression is an important aspect of a democratic
society. As has been recognised in the
past broadcasters, such as the BBC, fulfil a vital function in informing the
public of matters of genuine interest.
Part of the function is to act as a "watchdog" and inform the public on
matters of interest and concern. In that
regard investigative journalism has a particular role. However, the freedom is not without limits
and there may be interference in its exercise where that interference falls
within the requirements of paragraph 2 of Article 10.
[13] Where a broadcaster such as the BBC insists on their right to
freedom of expression it will be necessary for the court, where there are
competing considerations, to carry out a balancing exercise putting in the
scales on one side the public interest in broadcasting and on the other
competing interests such as the right of the pursuers to protect confidential
information (see Imutran Limited v Uncaged Campaigns Limited [2001] 2 All ER 385 at paragraph 20 and Lion
Laboratories v Evans (infra)). I was also referred to the approach where
there are competing Convention rights, and in particular to the speech of Lord
Steyn in In re S (A Child) [2005] 1 AC 593 at paragraphs 15-17. The pursuers did not seek to rely on any
rights under Article 8 of the Convention but did seek to rely on their right to
privacy their intellectual property under Article 1 of the First Protocol to
the Convention.
[14] In the course of the discussion it seemed to me that a possible
pragmatic way of resolving the case would be for the BBC to publish the
information obtained by the undercover activities but not to name the
pursuers. The BBC declined to take that
course for various reasons. They prefer
to rely on the principle of freedom of expression to publish all the details of
the story and submit that it is for the pursuers to demonstrate a legal basis
why the BBC cannot tell the whole story.
The pursuers found on a breach of confidentiality. The essence of the case against the BBC is
that the broadcast contains information obtained in breach of
confidentiality. If the pursuers are not
named they would have no basis to sue the BBC.
The BBC recognizes that by naming the pursuers they put in issue the
conflict between the competing rights which must be resolved by the court. In my opinion the BBC are entitled to take
this approach and that there would be no relevant basis to proceed on the
amended conclusion by limiting the interdict to preventing identification of
the pursuers and their premises.
The
public interest in broadcast of the material collected by Miss Gill
[15] The purpose of the
documentary is to explore bank account and credit card fraud which, on any
view, constitutes a major criminal activity at the present time. The impact of this type of crime on the
national economy is very significant. I
was advised that bank account and credit card fraud costs many millions of
pounds to the United Kingdom
economy every year. The investigation of
bank account and credit card fraud by a broadcaster such as the BBC is a matter
of genuine public interest and concern.
It appears that one route by which organised criminals may gain the
necessary information to carry out fraud is by accessing information held in
the computers of call centres. The
records held by call centres are valuable sources of such information. One way in which access may be gained is by a
criminal obtaining a job in a call centre.
The extent to which call centres establish and operate security systems
and procedures for vetting employees are matters for legitimate public
interest. Improvements to such systems
are of benefit to the public and the operators of call centres. Most members of the public have bank accounts
and credit cards. Most will from time to
time have contact with call centres. There
is therefore considerable public interest in the broadcast of material such as
that obtained by Miss Gill operating undercover.
The
Relevant Code
[16] The relevant code for the
purpose of section 12(4) of the 1998 Act is the Code prepared by the
Broadcasting Standards Commission in fulfilment of its statutory duty under the
Broadcasting Act 1996 and now promulgated by Ofcom, its successor under the
Communications Act 2003 ("the Code"). The
principle stated by Section 7 of the Code is as follows:
"To ensure that
broadcasters avoid unjust or unfair treatment of individuals or organisations
in programmes."
Section 7.14, so far as material,
stipulates:
"Broadcasters or
programme makers should not normally obtain or seek information, audio,
pictures or an agreement to contribute through misrepresentation or deception. (Deception includes surreptitious filming or
recording.) However:
ท
it may be warranted to use material obtained
through misrepresentation or deception without consent if it is in the public
interest and cannot reasonably be obtained by other means.
ท
if the individual and/or organisation is/are not
identifiable in the programme then consent for broadcast will not be required."
Section 8 deals with privacy and
states as its principle:
"To ensure that
broadcasters avoid any unwarranted infringement of privacy in programmes and in
connection with obtaining material included in programmes."
Section 8.13 stipulates:
"Surreptitious
filming or recording should only be used where it is warranted. Normally, it will only be warranted if:
ท
There is prima facie evidence of a story in the
public interest; and
ท
There are reasonable grounds to suspect that
further material evidence could be obtained; and
ท
It is necessary to the credibility and
authenticity of the programme."
I note that the Code does
contemplate circumstances in which it will be warranted to use deception and
surreptitious filming.
[17] In Regina v Broadcasting Standards Commission, ex parte British Broadcasting Corporation [2001] 1QB 885 programme makers
for the BBC had secretly filmed transactions in a shop as part of an
investigation for a consumer affairs programme into the selling of second-hand
goods as new. The proprietors of the
shop complained to the Broadcasting Standards Commission, although in the event
the material was not broadcast. At
paragraph 33 Lord Woolf MR said this:
"While the
intrusions into the privacy of an individual which are possible are no doubt
more extensive than the infringements of privacy which are possible in the case
of a company, a company does have activities of a private nature which need
protection from unwarranted intrusion.
It would be a departure from proper standards if, for example, the BBC,
without any justification, attempted to listen clandestinely to the activities
of a board meeting. The same would be
true of secret filming of the board meeting.
The individual members of the board would no doubt have grounds for
complaint, but so would the board and thus the company as a whole. The company has correspondence which it could
justifiably regard as private and the broadcasting of the contents of that correspondence
would be an intrusion of its privacy. It
could not possibly be said that to hold such actions of intrusions of privacy
conflicts with the Convention."
I note the qualification "without
any justification" added to the example.
I conclude that the Code leaves open the possibility that a broadcaster
may in appropriate circumstances obtain and use material by deception including
surreptitious filming.
Confidentiality
of the pursuers' information
[18] I am satisfied that a
corporate entity such as the pursuers do have a right to privacy (Hoechst AG v Commission of the European Communities [1989] ECR 2859, ECJ and Regina v Broadcasting Standards Commission, ex parte British Broadcasting
Corporation (supra).
[19] I am satisfied that the pursuers have a right under Article 1
of the First Protocol to the Convention to the peaceful enjoyment of their
possessions. In particular that right to
enjoyment of their property would include intellectual property such as their
work systems, procedures and employment protocols. It was not argued before me that the pursuers
had rights under Article 8 of the Convention.
[20] The pursuers have a right to preserve their confidential
information and to privacy. They have a
Convention right to enjoyment of their intellectual property. The pursuers are entitled to expect employees
to abide by their contracts. They have a
right to expect employees not to disclose confidential information. Where there is a conflict between the right
of one party such as the pursuers to confidentiality and the right to freedom
of expression of another such as the BBC the court will require to carry out
the balancing exercise outlined above. I
was referred in another context to the following passage in Lion Laboratories v Evans [1985] QB 526 where Stephenson LJ explained the way in
which the court will approach the conflict between the competing interests:
"The
problem before the judge and before this court is how best to resolve, before
trial, a conflict of two competing public interests. The first public interest is the preservation
of the right of organisations, as of individuals, to keep secret confidential
information. The courts will restrain
breaches of confidence, and breaches of copyright, unless there is just cause
or excuse for breaking confidence or infringing copyright. The just cause or excuse with which this case
is concerned is the public interest in admittedly confidential information. There is confidential information which the
public may have a right to receive and others, in particular the press, now extended
to the media, may have a right and even a duty to publish, even if the
information has been unlawfully obtained in flagrant breach of confidence and
irrespective of the motive of the informer. The duty of confidence, the public interest in
maintaining it, is a restriction on the freedom of the
press which is recognised by our law, as well as by article 10(2) of the
Convention for the Protection of Human Rights and Fundamental Freedoms (1953)
(Cmd. 8969); the duty to publish, the countervailing interest of the public in
being kept informed of matters which are of real public concern, is an inroad
on the privacy of confidential matters. So
much is settled by decisions of this court, and in particular by the
illuminating judgments of Lord Denning M.R. in Initial Services Ltd v
Putterill [1969] 1 QB 396; Fraser v Evans [1969] 1 QB 349; Hubbard v Vosper [1972] 2 QB 84; Woodward
v Hutchins [1977] 1 WLR 760; and per Lord Denning MR (dissenting) in Schering Chemicals Ltd v Falkman Ltd [1982] QB. I add to those the speeches of Lord
Wilberforce, Lord Salmon and Lord Fraser of Tullybelton in British Steel Corporation v
Granada Television Ltd [1981] AC 1096".
Mr Clancy submitted that the material
disclosed in those parts of Miss Gill's footage which the BBC intended to
broadcast was not confidential at all in any real sense. While I consider that it goes too far to
suggest that the information is not confidential at all, I do not consider that
the kind of material which is disclosed in the final version of the programme
can be said to be highly confidential.
The material does not seem to me to be highly sensitive. This seems to me to be a matter to bear in
mind when carrying out the balancing exercise.
The
unlawful act
[21] As already noted, Miss Gill
was in breach of her contract with the pursuers. In addition, it is clear that the BBC induced
her to break her contract. This was a
deliberate exercise carried out as part of a larger inquiry into bank account
and credit card fraud. This could found
an action for damages by the pursuers.
Mr Keen founded strongly on the unlawful nature of the activities of
Miss Gill and the BBC. The BBC had
induced her to breach her contract of employment; they had conspired with her
to breach the contract. Although at one
stage Mr Keen appeared to submit that material obtained by an unlawful act
could never be justified, he did concede that there might be cases where an
overwhelming public interest would justify publication of such material. I do
not accept that material obtained by an unlawful act necessarily becomes so
tainted that it could never under any circumstances be used. It seems to me that the consideration that the
material was obtained by means which included a deliberate breach of contract
induced by the party seeking to exercise their right to freedom of expression
is one that has to be weighed in the balance along with the principal competing
considerations.
[22] A further point made by the Dean of Faculty was that this was
not a case where an employee had observed lapses of security occurring and
brought them to the attention of the press.
Miss Gill had deliberately created the lapse in security which would not
otherwise have occurred. There was no
suggestion that what Miss Gill had done had ever been done by an employee of
the pursuers before or that she was in any way encouraged by an employee. Again, it seems to me that this is a
subsidiary consideration to be taken into account. However, it does not appear to me to be a
compelling consideration.
Consequences
of broadcast for pursuers
[23] Both Mr Keen and the Dean of
Faculty submitted that the consequences of the broadcast would be serious. The pursuers' business may be damaged. Mr Keen went so far as to suggest that the
potential damage to the pursuers might be devastating. If they were named in the context of an
industry wide investigation and report, major institutions might feel obliged
to stop using the pursuers because of clear customer perception that a company
named in this context could not be used.
The businesses of the pursuers' client companies might be damaged. The revelation of the pursuers' procedures
might assist those who have criminal conduct in mind. Although individual employees were not
identified the building was identified; the employees could be watched as they
came and went and could become the targets of criminals.
[24] Mr Clancy submitted that these claims were exaggerated.
[25] I note that none of the clients of the pursuers is
identified. I do not accept that damage to
their businesses is likely. Again, none
of the employees of the pursuers is identified.
So far as the suggestion that employees could be identified by reference
to the building and targeted is concerned, it seems to me that a criminal who
was intent on suborning an employee would have little difficulty in identifying
call centres and watching the employees coming and going. I cannot see that the impact of this
programme in that regard would be significant.
It is clear that there already is a major problem of bank and credit
card fraud and the programme is designed to educate the public about it and
alert them to the risks rather than to assist criminals.
[26] I accept that there may be potential consequences for the
pursuers if they are identified as the operators of the Call centre into which
Miss Gill entered undercover. However,
it is difficult to quantify what the likely extent of these might be. Indeed, it seems to me to be an entirely
speculative exercise to attempt at this stage to quantify what the adverse
consequences, if any, for the pursuers may be.
Conclusion
[27] There is clearly here a
conflict of interests. I recognize the
right of the pursuers to confidentiality and to expect their employees not to
breach their contracts, including confidentiality clauses. I recognize the right of the BBC to freedom
of expression. At this stage I have to
consider whether the pursuers meet the test set out in section 12(3) of the
1998 Act.
[28] The material relating to the undercover activities of Miss Gill
forms part of a larger investigation in the programme into bank account and
credit card fraud. The programme is
moderate in its approach. In my opinion
there is a genuine and strong public interest in exploring the extent to which
lapses in security in call centres may contribute to bank account and credit
card fraud. The material may be capable
of being justified within the Code. The
confidential material is not highly sensitive material. While it was obtained by a breach of contract
and some of it was created by Miss Gill as an illustration rather than an
observation of an existing breach of security, the material is now available to
the pursuers and I do not consider that it is so tainted as to be
unusable. It seems unlikely that there
will be any adverse consequences for the clients or customers of the pursuers
or their employees. As to any possible
adverse consequences for the pursuers themselves, these are speculative and
difficult to quantify.
[29] Thus, when I scrutinize the competing interests I am driven to
conclude that I am not satisfied that the pursuers are more likely than not to
succeed at proof. Nor does there seem to
me to be any basis for applying the less stringent test contemplated by Lord
Nicholls in certain circumstances. I
conclude that the pursuers have failed to meet the section 12(3) test. Accordingly, I must refuse the motion for
interim interdict.
[30] Had it been necessary to go on to consider where the balance of
convenience lay I would have required to take account of the various matters
canvassed above and, in addition, the question as to whether broadcast could be
delayed until after proof. While I
accept that the issue of bank account and credit card fraud is likely to
continue to be of public interest for some time to come, I consider that it is
an issue of live current public interest and that programmes of this kind can
become stale. Taking all the
considerations into account I conclude that the balance of convenience would
lie in allowing the material to be broadcast and I would have exercised my
discretion in favour of the BBC. In
these circumstances, had it been necessary for me to exercise my discretion I
would have refused the motion.
