Jeremy Clarkson and his Top Gear colleagues James May and Richard Hammond took aim at the BBC on Saturday night during the Australian leg of their live tour in Perth.

It was reported a fornight ago that the broadcaster has prevented the trio from moving over to ITV to present another motoring programme. This is due to a clause in their respective contracts which prevents them from doing so until 2017.

Hammond, however, has reportedly hinted that the new programme could be based in the US to get around this issue – and the rumor mill has gone into overdrive with claims that Netflix and Amazon are keen to sign up the presenters.

So how can the BBC enforce this clause?

Whilst we don’t know the exact terms of the contract clauses of this type are known as restrictive covenants. They are extremely common in the contracts of senior employees and others who work in areas where they may come into contact with the employer’s commercially sensitive information. The aim is to prevent employees competing with the business after their employment has been terminated. Other common clauses in this area are ‘non-dealing’ clauses, banning the former employee from dealing with customers of the old business and clauses preventing employees from poaching staff from leaving their old company.

However, the BBC may not have it all its own way – restrictive covenants are notoriously difficult to enforce. The reason for this is that they are regarded as against the public interest as a restraint on trade and fair competition. As a result a restrictive covenant is only valid if it is reasonable and no more than is required to protect the employer’s legitimate interest.

In other words it can only protect up to the minimal level required to prevent harm and not interfere with individual’s freedom to pursue their chosen careers. It is common for the restriction to be limited to certain areas or territories and also limited by duration of the restriction. It is not clear whether the Top Gear restriction is worldwide, but given the show’s global reach this would not be unexpected.

What can Jeremy, James and Richard do?

One option for Jeremy and his pals would be to go to Court and ask for a declaration that it was invalid. They could argue that the apparent two year restriction is too long.

In the case of Thomas v Farr (2007) a non-compete clause of 12 months was considered reasonable. More interestingly the presenters could argue that it is preventing them from carrying on their careers as TV motoring journalists.

This is the reason why many non-compete clauses fail – the Court finds that it places an unreasonable restriction on what the ex-employee can do.

However, if as reports suggest, the trio are set to work for an internet station such as Netflix, the restriction may only be limited to the terrestrial broadcasters. This could give them enough opportunity to ply their trade by showing their mugs on the telly.

What are the BBC entitled to protect?

In most cases where ‘non-compete’ clauses become relevant it is because a top executive has left the business and has a head (and perhaps even a laptop or briefcase) full of confidential information about the business – its clients, its deals, its finances, processes, research and development.

To have the ex-exec walking through the door of its main competitor on a Monday morning after he has left his job on a Friday afternoon, would obviously be extremely damaging for the company and a reasonable restriction would seem justified.

This was the issue in the Thomas v Farr case. Here it’s rather different and, while they may all have knowledge about what is (or rather would have been) coming up next series, this is not really what the restriction is about.

The point is to prevent the former presenters moving to a rival channel and setting up another motoring programme that would snatch viewers from the BBC. But the reason why prospective viewers would switch channels is because they want to see Jeremy, James and Richard not Chris and – well who knows.

In other words, because of who they are not what they know and if, it came to it, the BBC may have a difficult time convincing the Court that this was a legitimate interest to protect.

Robert Taylor is a media and IP solicitor at Cubism Law