World Famous Keeping it Confidential
Los Angeles attorney, writer and broadcaster Professor Paul Nicholas Boylan visited the School of Law on October 11th 2007 to deliver a seminar on “Constructing and Destroying Confidentiality Agreements”. The talk updated interested parties - in particular Entertainment Law students on the LLM and the Editors of the Entertainment and Sports Law Journal- on the immense interest in, and growing celebrity of, the article on the topic that appeared in Volume 4 Issue 2 of ESLJ entitled “Celebrity/Employee Confidentiality Agreements: How to Make Them Work”
In that article Professor Boylan offered an analysis of the defects of reasoning and drafting that led to spectacular failures of high profile confidentiality agreements such as those involving Michael Jackson and The Beckhams. His main contention (notwithstanding, he said, reasonable philosophical objections to the contrary) is that lawyers constructing this type of agreement habitually overestimate the courts’ practical willingness to accept that top celebrities have a reasonable expectation of privacy amounting to a right. In pinning the hopes of an enforceable agreement on such a right, therefore, they exposed famous clients to massive litigation risks. “Courts are likely to hold that the more famous someone is, the lower their reasonable expectation of privacy,” Professor Boylan observed.
His advice to practising lawyers worldwide is to take notice of the U.S, experience and, in the UK - building on Lord Hoffman's deflating remarks about the future of a tort of privacy and the Douglas’s famous, but limited, successes against Hello magazine - ensure that they characterise the contractual rights in question as good, old-fashioned economic ones akin to trade secret and restrictions of trade clauses. In so doing, and in building in explicit forms of consideration for keeping secrets secret, and on an agreement for a contracting party to co-operate in any litigation ensuing from an alleged breach, the prospect of a successful law suit against a third party publisher (offering big money to induce a breach) will act as a powerful deterrent.
Boylan's recipe for secure celebrity confidentiality seems to have caused quite a stir in the U.S with a host of public figures requesting his services, and network and cable TV eager to interview him following the web publication of theEntertainment and Sports Law journal article. On his visit Professor Toddington, who was guest editor of the now celebrated issue, introduced Professor Boylan as “America's leading expert on Confidentiality Agreeements”. Paul corrected him politely; "I'm the world's leading expert - there’s only one article available on the web, and I wrote it…"