The protection of confidential information has recently been the subject of significant public attention in Europe and
In the
Keeping a close eye on the competition in sport is nothing new. In the
In sport, league or organisation officials often wield the powers most immediately relevant to teams. Understandably, teams often turn to these bodies first. There is also often an informal code of practice regarding what is fair play and what is not. While relying on league officials and informal agreements can be effective, given the increasing stakes at play, more traditional legal remedies could become an important option for teams to pursue. This raises the question of whether these remedies are appropriate or adequate.
One remedy is pressing for criminal sanctions for theft. However, it is unlikely that many appropriations would warrant prosecutions — information of itself is not property that can be stolen. Unless media containing the information has been taken, the offence would be difficult to make out. These practical difficulties, combined with the fact that criminal law is a blunt tool at best, make it an unlikely remedy for teams to consider.
Outside the criminal realm, teams might be able to rely on copyright to prohibit the reproduction of manuals, playbooks, drawings or other similar written materials. But the most appropriate remedy is typically a breach of confidence action against the team and/or individuals involved. To be successful a claimant would have to demonstrate that:
- the information has the necessary quality of confidence about it;
- the information has been imparted in circumstances importing an obligation of confidence; and
- there was an unauthorised use of that information to the detriment of owner.
The difficulty lies in applying these factors to individual circumstances. The first requires that the information be of limited public availability and of a specific character. In
The second requirement is often more challenging to meet. Much of what is done in the world of sport is on public display — the entire point is producing a spectacle for public consumption. But this is not necessarily definitive, as in
Chief among these are the steps that the owner has taken to protect the information, and the recipient’s knowledge of its confidential status. If teams can demonstrate that they have taken steps to protect the information and these steps were known by the recipient (or should have been), protection could be available. This is clearly easier with documents, as in Ferrari-McLaren. Play-calling signals could also conceivably meet this test, as while the signal itself may be visible, the information it conveys is confidential unless you are able to ‘crack’ the code.
Unauthorised use of the information causing detriment is the final required element. In many cases where an apparent use of this information appears directly on the field of play, either in the form of a modified play, or re-engineered equipment, this may be straightforward to establish. But it will be difficult to show detriment in cases where the information is not used in such an obvious way. Even when this is the case, teams may also be able to demonstrate that the recipient of the information has obtained an advantage (to the owner’s detriment) in applying the information in more subtle ways — for example, by avoiding tactics known not to work.
Not all confidential information filters from team to team through the result of active spying or ‘leaks’. Personnel frequently move from one team to another, sometimes even part of the way through seasons. Teams, like corporate employers, can take steps to prevent know-how from transferring across with such moves. However, this is often difficult in practice as employees are entitled to take with them a degree of information and use it in their new employment. English courts have articulated a difference between what is part of the employee’s accumulated skill and knowledge, and what must be protected and not disclosed to any future employer. But where this line lies is often difficult to determine.
Ultimately, as sports clubs see increasing values attached to their success or failure, the difference between fair and foul play may be increasingly tested in the courts. Sheffield United FC’s recent battles regarding its relegation from the Premier League come to mind. But seeking relief from the courts will not necessarily be easy. The time and expense involved may discourage teams from pursuing legal claims. Even if they are successful, it may not translate into sporting success.
In 1978 the Shadow F1 team brought the Arrows team to court with an allegation that they had copied their car design (the designer, Tony Southgate, had recently defected from Shadow to Arrows). While in that case an injunction was obtained, the Arrows team simply fielded a different car for the next race, and the Shadow team folded soon afterward during the early 1980s.
Nonetheless, in some cases pursuing civil claims will not only be appropriate and adequate, but also necessary. To support a breach of confidence, teams will need to demonstrate that the circumstances surrounding the information were such that a duty of confidence should be imposed on the recipient. Implementing proactive procedures to protect the confidential nature of the information is key. Acting quickly on any breaches is also important. Applying for relief to internal governing bodies and the courts in tandem should pay dividends.
But one thing is now clear — it is not just Michael Douglas and Catherine Zeta-Jones who need to worry about uninvited guests peeking over the paddock fence with a camera.
Patrick Reimer is an associate at Nabarro.
