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08 March 2018

Public interest and privacy in television

On 22 February 2018, the High Court held that footage used by Channel 5 in its television programme Can’t Pay? We’ll Take It Away (CPWTIA) had interfered with the subjects’ right to privacy, in a case providing guidance on the limits of the public interest justification for filming officials (whether public or private) going about their business and the people they interact with without obtaining adequate consent.

Background

Shakil Ali and Shahida Aslam were evicted from their home by High Court Enforcement Agents on 2 April 2015 following a failure to pay their rent. The enforcement agents wore body cameras and were accompanied by a film crew, collecting footage of Mr Ali and Mrs Aslam’s reaction as they were evicted. The landlord was also present. This filming took place without the couple’s consent and was broadcast to over 9 million viewers.

Mr Ali and Mrs Aslam issued proceedings against Channel 5, arguing that the broadcast constituted a misuse of their private information. Channel 5 argued that the couple could have no expectation of privacy, principally in light of the fact that the eviction was simply the result of a publically available court order, and that, in any case, a broadcaster’s right to freedom of expression under the European Convention of Human Rights (ECHR) should outweigh any right to privacy that Mr Ali and Mrs Aslam may have had in this case.

Privacy, consent and the public interest

The court first considered whether Mr Ali and Mrs Aslam had a reasonable expectation of privacy in these circumstances. As above, Channel 5 evoked the principle of open justice, arguing that that they were simply exercising their right to report the events resulting from a publically available court order. Channel 5 also pointed out that Mr Ali had eventually agreed to be interviewed after some of the filming had already taken place. Mr Ali and Mrs Aslam said that his consent was only for the interview and that, in any case, Mr Ali later phoned the production company to unequivocally withdraw this consent. The couple stressed that the programme contained considerable footage of the inside of their home and captured them at their ‘lowest ebb’.

On this point the court sided with the claimants, confirming that the couple did not consent to being filmed and were not in fact told what the filming was for (despite the programmes compliance manual requiring them to do so). Review of the rushes showed that at various points the couple objected to being filmed and that Mr Ali only agreed to be filmed to present his side of the story.  The events depicted in the programme largely took place inside the claimants’ home, showing the couple facing eviction in a state of shock and distress. The court held that the principle of open justice simply meant that Channel 5 could report the fact that the court had authorised enforcement agents to take possession of the property; it did not extend to filming and broadcasting the eviction itself. Mr Ali and Mrs Aslam therefore had the right to expect privacy in this instance.

The key question was therefore whether this right to privacy was outweighed by Channel 5’s freedom of expression. As neither right has precedence over the other in principle, the court’s approach was an ‘intense focus on the comparative importance of the specific rights being claimed’ and the proportionality of limiting one right in favour of the other. Channel 5 argued that the programme showed the potential consequences of excessive debt as well as illustrating the powers of High Court Enforcement Officers, which they said were not well known among the public. In contrast, Mr Ali and Mrs Aslam reiterated the extent of the invasion of their privacy and their home, also stating that the broadcast had exposed their children to bullying.

While the court accepted that there was a public interest in a television programme about debt and the powers of High Court Enforcement Officers, it found that the use of the claimants’ private information in CPWTIA went beyond what was justified for the purposes of the public interest. Instead, the programme focused on the drama of Mr Ali and Mrs Aslam being evicted. The Judge noted that it was clear from the rushes that the bailiffs and production staff were encouraging conflict to make good television.

As a result, Channel 5 was ordered to pay £10,000 to each claimant for the distress caused by the broadcast.

Key points to note

For broadcasters and production companies, this case serves to underline the key considerations in using a similar method of filming officials and the people they interact with and the limits of a public interest justification for restricting someone’s right to privacy. Those making these types of programmes should review their procedures and ensure that either proper consent is obtained and/or the footage is obtained and used in a manner consistent with the public interest concerned.


This article was written by Leo Michelmore. For more information, please contact Leo on +44 (0)20 7438 2115 or at leo.michelmore@crsblaw.com.

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