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Did the covert video of JD Sports boss Peter Cowgill and Footasylum’s Barry Bown break the law?

·2-min read
The retailer rejected claims it could have breached corporate governance rules (Steve Paston/PA) (PA Archive)
The retailer rejected claims it could have breached corporate governance rules (Steve Paston/PA) (PA Archive)

JD Sports is once again in the spotlight after video footage emerged of chairman Peter Cowgill and Footasylum chair Barry Bown meeting in a car park in Bury, Greater Manchester in July.

JD has been in the process of buying Footasylum for two years. At the time of the meeting, the the Competition and Markets Authority (CMA) had an enforcement order in place that meant the retailers couldn’t share any commercially sensitive and confidential information with each other.

Only two weeks ago, the CMA said JD Sports’s FootAsylum deal went against competition rules and ordered it to be unwound.

The meeting between Cowgill and Bown was not illegal in and of itself and had not been prohibited by the CMA in the enforcement order. Both parties have denied wrongdoing and said the CMA were aware of the meeting and its contents. Peter Cowgill, chairman of JD, alleges there was no “implications of business wrongdoing or incorrect conduct”.

Final judgement will rest with the CMA, which is said to be investigating.

JD Sports last week hit back by saying the filming of the meeting was “highly irregular and potentially illegal”. The suggestion that the covert filming was illegal has puzzled many.

Covert filming, in and of itself, is legal. The courts allow secretive filming to be used as evidence in legal proceedings, although there are some restrictions.

Whether it’s legal or not is based on how the filming is obtained and what information has been recorded.

For example, if an individual deceived someone to obtain a recording or the information shared is confidential, then the recording would be deemed illegal. (The recording doesn’t have to be made public for it to be illegal).

The meeting took place in a public car park, so on the face of it, the covert filming of the meeting itself isn’t necessarily illegal. It could fall foul of the law depending on what was discussed and recorded. If the video captured what the pair were saying, it could amount to a breach of privacy, confidence or/and data protection laws.

In order for JD to take legal action, it would have to provide evidence that the recording of the conversation breached the law.

Whoever filmed this meeting - Cowgill alleged it was a competitor - could potentially face a claim from JD. Whether the filmer is genuinely concerned about this prospect is another matter. They may have already got what they wanted.

Marcin Durlak is is a Managing Partner and Joint Founder of IMD Solicitors LLP and IMD Corporate. He has extensive experience in advising international businesses on commercial and corporate matters, employment law issues and dispute resolution.

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