Yesterday an interesting privacy judgment was handed down in the English High Court by Mr Justice Arnold. The Claimants, Shakir Ali and Shahinda Aslam, brought proceedings against Channel 5 Broadcast Limited (“Channel 5”) for breaching their privacy in using footage of their eviction in the defendants’ television programme, ‘Can’t Pay? We’ll take it away’.
‘Can’t Pay? We’ll take it away’ is an observational documentary series broadcast by Channel 5 which follows the work of High Court Enforcement Agents. The programme often features the evictions of tenants from residential premises by High Court Enforcement Agents and these agents pursuing debtors for the recovery of monies owed to their clients. At Paragraph 58 of his judgment, Mr Justice Arnold states that the production company “wanted to show how the process which courts provided for the enforcement of debts and the reclaiming of property from debtors and tenants actually operated within ordinary peoples’ lives. He particularly wanted to show how landlords and creditors could expedite enforcement by moving the process from the County Court to the High Court, and the effect of this.”
The Claimants argued that they had a reasonable expectation of privacy and that this had been breached. Meanwhile, the Defendants argued that the Claimants did not have a reasonable expectation of privacy. Alternatively Channel 5 argued that if the Claimants did have a reasonable expectation of privacy, that was defeated by the Defendants’ rights to freedom of expression when the two were balanced against one another. Channel 5 was responsible for selecting which enforcement actions that were filmed for the programme would actually appear in the television series.
On the day of the eviction, the Claimants were visited by two High Court Enforcement Agents; one of whom was in training and the other, Mr Paul Bohill, had more than 30 years’ experience as a High Court Enforcement Agent. Only the first claimant was in the property when the Agents, together with a television film crew, arrived at the property to effect the eviction. Certain information was supposed to be provided to those being filmed but the evidence proved that Mr Bohill actively prevented that information being given to the Claimants, even when the first claimant enquired about why it was being filmed. Mr Justice Arnold covers the events of the eviction of the claimants, in detail, in paragraphs 70 – 115 of his judgment.
On 17th June 2015 the first claimant contacted the production company objecting to footage of his eviction being used in the television series. He was told that they [the production company] needed to get their facts straight with regards to his benefits, but that his objections would be passed onto Channel 5 who made decisions about broadcast.
At paragraph 169 of his judgment, Mr Justice Arnold states that in his “judgment the principal factors relied upon by the Claimants do lead to the conclusion that they had a reasonable expectation of privacy in respect of the information in question. The Programme was largely filmed in their home; it showed them being evicted without prior warning; it showed them in a state of shock and distress; it showed them being taunted by Omar Ahmed; and it was foreseeable that the broadcasting of the Program me would have an adverse effect on their children. I do not accept that the open justice principle means that the Claimants’ Article 8 rights were not engaged. Open justice means that Channel 5 was entitled to report the facts that the courts had made the Order for Possession and issued the Writ of Possession and in consequence the Claimants had been lawfully evicted; but what happened in their home on 2 April 2015 was not part of the proceedings. Nor do I consider that the broadcasting of the information was an inevitable consequence of the Claimants’ failure to comply with the Order for Possession. Nor do I accept that Mr Ali’s Article 8 rights were significantly weakened by his political activity. Mrs Aslam had not engaged in political activity at all. I accept that the Claimants, and their children, had already suffered damage to their privacy as a result of the Ahmeds’ postings on social media, but I do not accept that this meant that the broadcasting of Programme either could not or did not inflict further damage given the substantial scale and duration of the broadcasting.”
In respect of the argument advanced on behalf of Channel 5, that Mr Ali had consented to being filmed, Mr Justice Arnold states that the consent was not “true consent”, was “an agreement to participate under protest” and “was not fully informed agreement given that he was not told anything about the programme that was being filmed or who would broadcast it or about the body cameras.” (paragraph 177). In any event, Mr Justice Arnold held that “to the limited extent that he did give consent on 2 April 2015, he unequivocally withdrew that consent prior to the first broadcast of the Programme.” (paragraph 178).
Having found that the Claimants did have a reasonable expectation of privacy, it became necessary for the court to balance that against Channel 5’s rights to freedom of expression. There was no dispute that there was a genuinely held belief by the production company and channel 5 that the programme was in the public interest; however, there was a dispute between the parties as to whether that was enough or whether it had to be assessed objectively. Mr Justice Arnold concluded that it was clear that the court had to assess it objectively.
Channel 5 argued that “the programme addressed a number of matters of real public interest and concern: increasing levels of personal debt, and in particular rent arrears of tenants in privately-rented accommodation; the dependence of tenants on benefits, and in particular housing benefit; the effect of enforcement of writs of possession by HCEAs; and the consequences for both landlords and tenants. He further submitted that it was justified for Channel 5 to illustrate these matters by showing what happened to real people in real situations, because that was the best way to engage the public and stimulate debate.”
At paragraph 195, Mr Justice Arnold concludes that “the Programme did contribute to a debate of general interest, but…the inclusion of the Claimants’ private information in the Programme went beyond what was justified for that purpose…The focus of the Programme was not upon the matters of public interest, but upon the drama of the conflict between Omar Ahmed [the landlord] and the Claimants. Moreover, that conflict had been encouraged by Mr Bohill…”
Mr Justice Arnold ultimately concluded that when balancing the rights of the Claimants to a private and family life against Channel 5’s rights to freedom of expression, the balance came down in favour of the Claimants’ Article 8 rights. Each claimant was ultimately awarded £10,000 in damages.
This case raises a number of questions about similar style programmes regularly broadcast on television in the United Kingdom. It is possible that Channel 5 might face claims from others featured in ‘Can’t Pay? We’ll take it away’ arising out of the publicity that this judgment has received. Of course, Channel 5 might well decide to appeal the decision; however, in the meantime broadcasters who broadcast similar style programmes and the production companies who make them ought to reflect upon the decision in the meantime and take it into account when making decisions about programming content of that nature. It is clear that individuals in these situations do have a reasonable expectation of privacy. There will be circumstances where the broadcasters’ freedom of expression will defeat the privacy rights of the individuals; however, there will need to be a genuine attempt to cover matters of public interest. If it is simply for the prupose of entertainment, then broadcasters could find themselves being sued for breach of privacy if they do not have informed consent from the individuals featured (or do not take steps to protect the identities of those featured).