Tillery Valley Foods v Channel Four Television & Anor

Confidentiality does not arise merely because an employee films workplace activities, nor does a contractual restriction on disclosure give otherwise non-confidential information a confidential quality. Where disclosure is justified by the public interest, confidentiality law does not impose an ancillary right of reply or a right to inspect material needed to formulate one. A claim seeking such relief may be, in substance, a defamation claim in disguise. The rule against interim restraints on publication applies where alternative causes of action are used merely to circumvent the protection of freedom of expression.

Tillery Valley Foods sought an interim injunction preventing Channel Four Television and Shine Limited from broadcasting an investigative programme about alleged poor hygiene practices at Tillery’s factory. The application was limited to confidentiality and sought postponement of the broadcast until Tillery had inspected relevant footage, testing material and protocols and had been given an informed opportunity to respond.

The defendants accepted that the programme concerned matters of public interest and intended to justify the allegations. The central issues were whether the filmed workplace material possessed the necessary quality of confidentiality, whether confidentiality law required an informed right of reply, and whether interim relief could properly be granted.

1. Application dismissed. Tillery had no real likelihood of establishing at trial that it was entitled to an injunction based on misuse of confidential information.
2. The existence of confidential information is an essential element of the claim. Workplace filming does not, without more, give the resulting information the necessary confidential quality. The comparison with Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 supported that conclusion.
3. Clause 15 of the employee’s contract imposed a contractual restriction on disclosure. It did not make all information confidential, expressly or by implication, where the information lacked that quality independently.
4. Even if confidentiality had been established, the claimant accepted that the public interest justified disclosure of the matters found. Confidentiality law contains no additional requirement that disclosure be accompanied by a right of reply. Consequently, there was no ancillary right to inspect footage, testing material or protocols for the purpose of preparing such a response.
5. Section 12(3) of the Human Rights Act 1998 required a real prospect of success, convincingly established, before relief restraining publication could be granted. The judge was not satisfied that this threshold was met. He further observed that prior restraints were subject to the principles stated in Cream Holdings Ltd v Bannerjee [2003] Ch 650, and that the application would fail on that basis even if the right of reply were arguable.
6. The substance of Tillery’s complaint was that the reporting might be inaccurate and defamatory. If the reporting were accurate, there would be no legitimate complaint in law; if inaccurate, the appropriate claim would be for the damage caused by falsehood. The rule in Bonnard v Perryman [1891] 2 Ch 269 therefore applied to prevent an interlocutory injunction where justification was intended. The same protection applied where other causes of action were used merely as a device to circumvent that rule, following Service Corporation International plc v Channel Four Television [1999] EMLR 83.